Joint Hindu Family

Hindu law emphasises the importance of a joint family. It is said that there is no way out of
Joint Family for any Hindu. Perhaps in one generation or another, a Hindu will naturally form
a Joint Family. According to Hindu law, there is a presumption that each family will be
regarded a joint family. Before we get into the details of the Hindu Undivided Family, let's
define what a join family is in layman's terms. A joint family, according to the Oxford
Dictionary, is a living unit made up of two or more generations of a family and their spouses.

What is a Hindu Joint Family

The Hindu Succession Act of 1956 governs the Hindu Joint Family nowadays. It is a common
occurrence in Hindu civilization. As previously said, it is unavoidable for a Hindu to form a
combined family. The idea behind this is that if one generation is brought to an end by a
partition, it will immediately reappear in the next generation. This lends credence to the
notion that every Hindu family is a Joint Hindu Family.

In the cases of Rukhmabai vs. Lala Laxminarayan and Rajagopal vs. Padmini, it was
determined that a family remains a joint family if it is united in matters of food, worship, and
inheritance. Even though a family does not share food or worship, i.e., if they live apart, they
might still be considered a Joint Hindu Family if they share an estate. In the case of Chhotey
Lal & Ors. vs. Jhandey Lal & Anr., it was determined that a Joint Hindu Family is neither a
company nor a juristic person because it lacks a separate legal entity from its members. A
Joint Hindu Family is a unit that is represented in all affairs by the Karta of the family.

All family members make up a Hindu Undivided Family. In other words, all the male
members descended from a common ancestor in a straight line up to any generation. Even
an illegitimate offspring of a male descendent is a part of his father's Joint Hindu Family,
according to the case of Gur Narain Das vs. Gur Tahal Das. Their mothers, wives, widows,
and unmarried daughters are all included.

Until she marries, an unmarried daughter stays a member of the joint family. She becomes
a member of her husband's Joint Hindu Family once they marry. However, if the daughter is
abandoned by her husband or becomes a widow and permanently returns to her father's
home, she re-joins the Joint Hindu Family, But her children remain a part of their father's
joint family.

It is crucial to remember, however, that a Joint Hindu family cannot exist without a shared
ancestor. Even after the death of the common ancestor, the family remains a Joint Hindu
Family. Under section 2 of the HMA, a person can leave a joint family if they convert to
another faith or marry a non-Hindu. Even when a child is given in adoption to a third party
by competent parents or a daughter is married off, one ceases to be a member of a joint
family.

Laws Concerning Hindu Undivided Family

The Hindu Undivided Family is inextricably linked to the Hindu Succession Act and the Hindu
Marriage Act.

Hindu Succession Act:

The Hindu Succession Act governs Hindu succession regulations. When a Joint Hindu Family
is involved, there is usually an ancestral property that the descendants would inherit. The
Hindu Succession Act regulates this.

The Hindu Property Act:

Respects the Hindu Undivided Family idea. This means that this legislation governs the
ancestral property inherited by a family of people who are lineally descended from a
common ancestor and are linked to one another by birth or marriage.

The Hindu Marriage Act, on the other hand, is a law that governs Hindu marriages. That
particular joint family includes the wives of the male descendants. Unless they opt to return
to their mother home permanently after being widowed, they remain a part of that joint
family. Until they marry off, the daughters are also a part of the joint family. As a result, the
Hindu Marriage Act is crucial in the Hindu Undivided Family.

Income Tax Act: HUF is treated as a person u/s 2(31) of the Income Tax Act. Individual
members of a Joint Hindu Family can file their separate Returns under the Income Tax Act
and filing of these Returns is irrespective of the status of the family.

Composition
As stated in Surjit Lal Chhabda v. CIT, it consists of all male family members descended
lineally up to any generation from a common ancestor, as well as their mothers, wives,
widows, and unmarried daughters. Until she marries, a daughter remains a member of her
parents' joint family. She becomes a member of her husband's Joint Hindu family once she
marries.

If a daughter's husband abandons her or she becomes a widow and returns to her father's
home permanently, she re-joins the Joint Hindu family. Her children, on the other hand,
remain in their father's Joint Hindu family and do not join the mother's father's Joint Hindu
family. Even an illegitimate offspring of a male descendent shall be a part of his Joint Hindu
family, according to the case of Gur Narain Das v. Gur Tahal Das.

Beginning
It is important to note that a Joint Hindu Family cannot be formed without a shared
ancestor. The presence of a common ancestor is required for its formation, but not for its
continuation, i.e. the death of the common ancestor does not result in the dissolution of the
Joint Hindu Family. The marriage, birth, or adoption of the child in the marriage removes
upper family relationships and adds lower family links. This cycle will continue as long as the
species does not go extinct. The Sapinda relationship (belonging to the same ancestors, up
to three and five lines of descent from the mother's and father's sides, respectively) or
family relationship binds the members.

Exit
The status of being a part of the Joint Hindu Family can be ceased in the following
cases:

• By conversion to another religion or faith.

• By marriage to a non-Hindu (a person who is not Hindu as per Section 2 of the Hindu
Marriage Act, 1955 which include a Muslim, Jew, Parsi or Christian by religion).
• By being given in adoption to a third party by the competent parents.
• By marriage of a daughter.

What If?

• Position when there are only female members (widow)

On the death of the sole male member, a joint Hindu family can continue to exist at
the instance of already existing female members of the family. The term
'continuation' is different from starting or forming a joint family for the first time.

Illustration:
If A and B are brothers, C and D are wives of A and B respectively. Four of them
together constitute a Joint Hindu family.

• Position when there is only one male member in the family

In such a case the Joint Hindu family can still continue to function as the requirement
of a male member is essential to start a Joint Hindu family and not for its
continuance. It is not necessary to have at least two or more male members in the
family to make it a Hindu Undivided family as a taxable entry. In the case of CIT v.
Gomedalli Lakshminarayan it was held that even if the coparcenary does not exist in
a family still that family continues to be a Hindu Undivided family.

• Position when there are only daughters

After the Hindu Adoption and Maintenance Act, 1956
The Act gave power and permission to even a single woman to adopt a child. As per
law, the status of an adopted child is the same as that of a child born into the family.
Now, the woman could add a male member to her father's Joint Hindu family
without getting married. Therefore, an adopted child can be maintained by a single
parent also.

After the 2005 amendment in the Hindu Succession Act, 1956

The amendment to the Act gave the right to a daughter to be a coparcener and now
she can not only continue the Joint Hindu family but also constitute one with her
father and brothers.

• Position when there are only husband and wife

Because the couple has the option of adding a male member to the family, or in
other words, a coparcener, they can form a Joint Hindu Family. There is a split in
 court opinion on whether a husband and wife can establish a joint family under
revenue statutes in order to qualify for the Hindu Undivided Family tax exemption.

In the case of T. Srinivasan v. CIT, a partition took place in a Joint Hindu Family and the son
took his share. For a certain while, he filed his returns as an individual until he got married.
The question came into consideration when his wife was pregnant. It was held that only
when the son is born, he becomes a member of the joint family.

CASE LAW.
Janakiammal vs. S. K. Kumarasamy & Ors.
Date: 30th June 2021 Court.
Supreme Court of India Bench.
Hon'ble Justices Ashok Bhushan and Subhash Reddy.

Citation: LL 2021 SC 280.

Facts: In the case of R. Janakiammal vs. Kumarasamy, there was a partition dated 7th
November 1960 between three brothers. The Appellant claimed that the said partition agree
was entered by the three brothers to save the landed property from Land Ceiling Act and
there was no intention of separating each branch and changing the joint family status. The
Appellant contended that there was a reunion between the three brothers to revert to the
status of Hindu Joint Family which can be proved from the acts and conduct of the parties
after 7th November 1960.

Judgment in Brief: The issue before the Hon'ble Apex Court was whether a particular
house property purchased in 1979 is a joint family property or not. Considering the facts of
the case, the Top Court Bench of Hon'ble Justices Ashok Bhushan and Subhash Reddy found
that in 1979, when the residential property was obtained in the name of one brother, all 3
branches were a part of the Hindu joint family.

The Court while giving its judgment referred to the concept of reunion in Hindu Law
explained in Mulla on Hindu Law, 22nd edition. According to the concept of reunion in
Hindu Law, a reunion in estate property can only take place between the persons who were
parties to the original partition. Further, the effect of reunion is to remit the reunited
members to their former status as a member of a joint family. To constitute a reunion, there
must be the intention of the parties to reunite.

The Hon'ble Supreme Court in its judgment held that Hindu Joint Family, even if partitioned
can revert and continue the status of joint family. The Supreme Court Bench observed that
acts and conduct of the parties may lead to the inference that the parties reunited after
partition. The Court held that the house property purchased in the name of one member of
the Hindu joint family was for the benefit of all.

The Hon'ble Court also observed that the individual member of a Joint Hindu Family can file
his/her separate returns under Income Tax Act as well as Wealth Tax Act. The Court held
that the filing of such returns had nothing to do with the status of the family. The Bench
held that all three branches had an equal share in the residential property.
The Concept of Coparcenary: it’s past, present and future in the Hindu
concept of Joint Family

Copartioners means the division of property between co-owners or joint owners or parties
of inheritance in a Hindu Joint Family is known as coparceners. They are the person who has
a birthright to parental property and also has a right to partition. A coparcenary including a
common ancestor has succession up to four degrees of lineal descent.

It is derived from the concept and practice of the Hindu Undivided Family (HUF). The
concept of coparcenary is dealt with within the provisions of the Hindu Succession Act, 1956.
This concept is originated from ancient Hindu jurisprudence and became an essential
feature of Hindu Law.

Schools Of Law
Earlier there were two schools of thought to administer and regulate Hindu laws:

1. Mitakshara School:

It is a community interest under which everybody owns a uniform interest in the

property. And upon the death of a person property can be divided into all the sons
including grandsons. It is not necessary that upon the death of a person, the
property is to be divided, it is decided by the community. In this school, the property
is not divided between wife and unmarried daughter upon the death of the
successor. Karta of the family has to render a full account. Only Apratibandhaya or
unobstructed property is inherited by Mitakshara school.

2. Dayabhaga School:

It is one of the schools belonging to Hindu Law where sons have an absolute share
after the father. But the other lineal sons cannot get any share. They will get the
property upon their own father's death. In this school, if one of the members of the
successor dies his wife and unmarried daughter can acquire the property known as
succession per stripe. Karta renders full account only at the time of partition of the
property. Both Apratibandhaya, as well as Sapratibandhaya property, can be
inherited by Dayabhaga school.

Past, Present, And Future Analysis

• Hindu Law of Inheritance Act, 1929 was the first legislation that stated that three
female heirs son’s daughters, granddaughters, and sisters could inherit the ancestral
property.
 • Hindu Women Right to Property Act, 1937 brought major changes in the customary
laws and schools of thought. It focused primarily on the rights of widows and
divorces.
• Earlier in Section 6 of the Hindu Succession Act, 1956 in which daughters were not
having any right over the property. The doctrine of Survivorship was applicable
which states that sons are the coparceners by birth, but the property maintains the
women. Women can only become Karta of the family in certain cases.
• But after the amendment of the Hindu Succession Act, 2005 daughters are
considered coparceners by birth. Sons and daughters both have equal rights over
the property. The doctrine of Survivorship is no more valid. And women can become
Karta of the family. Even if the father of a daughter died before 2005, she is entitled
to an equal share.
• Article 14 of the Constitution of India was given importance and challenged the
fundamental principles of Hindu coparcenary law. Equal rights were given to married
and unmarried daughters.

Case Laws

1. State of Maharashtra V. Narayan Rao Sham Rao Deshmukh And Ors (1985) 2
SCC 321
In this case, it was stated that a Hindu coparcenary is a narrower body than the joint
family. Only males who acquire from birth an interest in the joint or coparcenary
property can be members of the coparcenary or coparceners. Coparceners consists
of the male members of the joint family and his sons, grandsons, and great-
grandsons. It includes one common ancestor and not more than three male
descendants.

2. Sathyaprema Manjunatha Govda V. The Controller of Estate Duty (1997) 227 ITR
1 SC
It was stated by the court that while a son, grandson, and great-grandson is a
coparcener, the great-great-grandson cannot be included in the coparcenary
property.

3. Panduram V. Panduram Pandurang

In this case, it was held that an adult female of the Hindu Joint Family can act as a
Karta.

4. Shyama Devi And Ors V. Manju Shukla And Anr. on 12th September 1994
Section 23 of the Hindu Succession Act, 1956 women, did not have the right to
partition but after the amendment of the Hindu Succession (Amendment) Act, 2005
has given equal rights to the daughters in the coparcenary property as the sons
already have.

5. Collector of Madura V. Mootoo Ramalinga Sethupathy (1868) 12 M.I.A. 397

It was stated that a widow has the authority to adopt a son without her husband's
consent.
 6. Prakash and Ors V. Phulavati and Ors on 16th October 2015
In this landmark case, it was declared that only living daughters of living coparceners
have the right over the property. There was a dispute between brother and sister
concerning the share of ancestral property. So, Phulavati filed a case claiming the
property of her father. Court expressed that there is a retrospective effect that it will
act backward and take away all the rights. Hence, Phulavati cannot be considered a
coparcener because her father died much before 20th December 2004.

7. Danamma @ Suman Surpur V. Amar on 1st February 2018

Danamma claimed one by a fourth of the share of the property of her father who
died in the year 1991. But the brothers of Danamma stated that she is not entitled to
claim the property because:

i. the act was not amended at the time of death of the father.
ii. then she was already married and given dowry.
High Court stated taking Prakash V. Phulavati as a precedent that
Danamma will get the property even if her father died in the year 2001.

8. Vineeta Sharma V. Rakesh Sharma on 11th August 2020

In this case, the person died before the commencement of the act on 20th
December 2004. But this is irrelevant because the act is acting retroactively. It will
not take away the rights and privileges already acting. By overruling the judgment of
Prakash V Phulavati it was concluded that daughters are entitled to property by
birth.

Conclusion
After the amendment, we must say it is fair enough to give equality to every sphere of law.
The women can now become coparceners of the property. The judges, however, were well
aware that a change in law only a stepping stone to a broader, more holistic shift in social
morality. Therefore I would like to conclude by saying that the law has changed, society
must too.

What are the Characteristic Features of Mitakshara

Coparcenary?

Characteristic features of Mitakshara Coparcenary are as follows:

In State Bank of India v. Ghamandi Ram, the Supreme Court observed: “A coparcenary
under the Mitakshara School is a creation of law and cannot arise by act of parties except
in so far that on adoption the adopted son becomes a coparcener with his adoptive father
as regards ancestral properties of the latter. The incidents of coparcenership under
Mitakshara law are:

(i) First, the lineal male descendants of a person upto third generation, acquire on birth
ownership in the ancestral properties of such person,

(ii) Secondly, that such descendants can at any time work out their rights by asking for
partition;

(iii) Thirdly, that till partition, each member has got ownership extending over the entire
property conjointly with the rest;

(iv) Fourthly, that as a result of such co-ownership the possession and enjoyment of
properties is common;

(v) Fifthly, no alienation of the property is possible unless it be necessity, without the
concurrence of the coparceners;

(vi) Sixthly, that the interest of the deceased member lapses on his death to the
survivors;”

The following are the characteristic features of the Mitakshara coparcenary:

(1) Unity of Ownership:

The essential feature of a Mitakshara coparcenary property is unity of ownership, i.e., the
ownership of property is not vested in a single coparcener. It is vested in whole body of
coparcenary. According to the true notion of an undivided family governed by the
Mitakshara law, no individual member of that family whilst it remains undivided, can
predicate, of the joint and undivided property, that he has a definite share.

In Thammavenkat Subbamma v. Thamma Ratamma, the Supreme Court affirming the

above view held that the essential feature of Mitakshara coparcenary is unity of
ownership and community of interest. No coparcener has any definite share in the
coparcenary property although his undivided share is existent there, which increases
with the death and decreases with the birth of any coparcener. The coparcener acquires
an interest in coparcenary property by birth, which is equal to that of his father.
(2) Indeterminability of Shares:
The interest of a coparcener in the coparcenary property is a fluctuating interest which is
liable to diminish with the birth and bound in increase with the death of any coparcener
in the family. So long the family remains united; no individual coparcener can predicate
that he has a definite share in the property of the family.

In Commissioner of Gift-tax v. N.S. Getty Chettiar, the Court upholding the above view
held that so long the family remains undivided; no individual coparcener can claim any
specific share in the joint family property. All the coparceners are the owners of entire
joint family property. Their shares can be specified only after the partition is effected in
the joint family. The share of any coparcener is thus unpredictable and unspecified
before partition.

Recently, in Munni Lal Mahto and others v. Chandeshwar Malito and others, the Court
upholding the above view held that if any coparcener of joint Hindu family transfer the
coparcenary property by way of gift without consent of other coparceners, it is void,
because all the coparceners are the owners of entire joint-family property and joint
family continues, and the coparcenary interest is an indeterminate. It becomes
determinate only when the states of jointness is broken.

(3) Community of Interest:

There is community of interest in the coparcenary property. The moment a person is
born in the family, he acquires an interest in the coparcenary property in the sense that
he has a right of common enjoyment and common use of all the properties, because as
soon as he is born as a son, he assumes the membership of the community.

It also signifies that no coparcener is entitled to any special interest in the coparcenery
property, nor is he entitled to exclusive possession of any part of the property. As it has
been rightly observed by the Privy Council that “there is community of interest and unity
of possession between all members of the family.” No coparcener can say with certainty
that he is entitled to one half or one fourth as it is the essence of coparcenary property
that there is community of interest and unity of possession.

The shares of individual coparceners cannot be defined. All the coparceners have a right
of common enjoyment or common use of the property. It signifies two implications:
firstly, possession of one coparcener in the possession of all coparceners, and secondly,
no coparcener has a right of exclusive possession of any portion of joint property.
(4) Exclusion of Females:
In Mitakshara coparcenary no female can be its members, though they are members of
joint family. Even the wife who is entitled to maintenance enjoys only the right to
maintenance but she can never become a coparcener.

Thus a female does not have the right to demand partition. Since she is not a coparcener,
she cannot become the Karta of the family. An alienation of the property of the joint
family by her will not be binding on her sons and daughters. The alienation of her own
share is not binding upon herself.

It is worthwhile to mention that the Hindu Women’s Right to Property Act, 1937,
conferred a special status on the widow and made them eligible to inherit the
coparcenary interest along with her sons, although she took it as a limited estate. Thus
she acquired the status like that of coparcener entitled to a share, equal to that of her
sons. For example, A who constitutes a coparcenary with his two sons, namely, В and C,
dies leaving behind his widow, W, two sons, В and C. Under the Hindu Woman’s Right
to Property Act, 1937, W inherited the coparcenary property along with В and С and
would get 1/3 share each.

(5) Devolution by Survivorship:

One of the distinctive features of coparcenary is that the coparcenary interest of a
coparcener in coparcenary property on his death does not devolve on his heirs by
succession but on the other hand it passes by survivorship to the other coparceners. Thus
right by birth and right of survivorhsip are necessary incidents of community of interest
and unity of ownership, which signify joint possession not an exclusive possession.

(6) Right of Maintenance:

All the members of coparcenary are entitled to maintenance by birth out of joint family
property. They continue to enjoy this right so long the coparcenary subsists. Where any
member fails to get any share on the coparcenary property even after partition he retains
the right of maintenance.

Some special provisions have to be made for them at the time of partition. Female
members and other male members who do not get a share on partition such as
unmarried daughters, idiots or lunatics, are entitled to maintenance out of joint family
property. Unmarried daughters have a right to be married out of joint family funds.

Where a coparcener married under Special Marriage Act, 1954, he is separated from
coparcenary. He can form separate coparcenary along with his male descendants.
No Joint family Coparcenary

1 Both Males and Females are Only male member are the
the members of the joint members of Coparcenary.
family

2 There is no limitation of In Coparcenary, Males upto four

degrees or generations with degrees (including senior most
regard to the membership of male) or generations from the
the Joint Family. senior most male members are the
members of the Coparcenary.

3 Some members, i.e. Female In Coparcenary all members have

members have no right by the right in the property by birth.
birth in the property.

4 Certain females like Father’s In Coparcenary all the members

wife, Mother, Grandmother have the right to demand partition.
etc. have no right to demand
partition.

The membership of Joint A Coparcenary is, much narrower

5 Hindu Family is acquired by body and it includes only those
birth or by marriage and persons who acquired by birth or
consists of all persons in exceptional case adoption by
literally descended from a sons.
common ancestor and their
wives and unmarried
daughters.

6 Every joint family is not a Every Joint Family is a

Coparcenary. Coparcenary.

A Coparcenary may come to an end

7 A Joint Hindu family shall with the death of the last coparcener
constitute even after the death or sole surviving coparcener.
of Manager/male/Karta and
consisting only females.
How does Hindu Law stratify Property

Introduction
“Property is intended to serve life, and no matter how much we surround it
with rights and respect, it has no personal being. It is part of the earth man
walks on. It is not a man.”

-Martin
Luther King, Jr.

The word ‘property’ is derived from the Latin word ‘proprietary’ and the French
comparable ‘proprius’ which implies a thing owned. The concept of property
and ownership is closely associated with one another. There is often no
property without possession and no possession without property. The concept
of property possesses a significant place in human life since it’s impossible to
measure the extent of ownership without property.

The property includes an exceptionally more extensive meaning in its real

sense. It not only includes the money and only the other tangible things but it
also includes intangible rights which are considered as a source of income or
wealth. The interest which a person has in lands and chattels to the exclusion
of others and it is proper to enjoy and to lose certain things most supremely
as he pleases, provided he makes no utilization of them precluded by law.

The sea and the air, cannot be appropriated; one may appreciate them, but
no one has an exclusive right over it. When things are fully our own, or when
all others are prohibited from intruding with them, or from interfering around
them, no individual other than the proprietor, who has this exclusive right, can
have any claim either to use them, or to prevent him from disposing of them
as he satisfies.

And the reason behind is that the property, considered as an exclusive right to
things, contains not as it were a right to utilize those things, but a right to a
range of them, either by exchanging them for other things or by giving them
away to any other individual, without any consideration, or even throwing
them away.
Classification of Property
Classification of Property means Property is divided into different forms which
are known by different names and all the different properties have their own
characteristics, features, and way of conducting its property. According
to Article 220 of Hindu Law, Property is classified into two types: (1) Joint
Hindu Family Property (2) Separate Property. Joint-family Property is
also known as ‘Coparcenary Property and this property consists of (a)
Ancestral Property (b) Property jointly acquired by the members of the Joint
family. (c) Separate property of a member “thrown into the common stock.”
(d) Property acquired by all or any of the coparcener with the aid of joint family
funds.

There is a lot of division and classification in Property. Before the enactment

of Hindu law, there were two principal schools
i.e. Mitakshara and Dayabhaga. Mitakshara School divides the property
into two categories and the first one is Unobstructed Property and the second
one is Obstructed Property. Further, after the enactment of Hindu law and the
decline of both principal school, the Property is divided into two parts i.e. Joint
Family Property and Separate Property under Hindu law.

Obstructed property
The property to which right accrues not by birth but on the passing of the final
owner is called obstructed property. It is called obstructed since the accrual of
the right to it is obstructed by the existence of the final owner. Hence the
property devolving on parents, brothers, nephews, uncles, etc. upon the
passing of the last owner, is obstructed property. These relatives are not
vested intrigued by birth. Their right to it arises only on the passing of the last
owner.

In this way, any property acquired by a male Hindu from relations other than
father, father’s father and father’s father’s father would be called obstructed
heritage. The owner of this property holds the property as Separate and
absolute one and there is no chance of combining property.

Obstructed property rights gained by the owner after the succession of the
final owner but there are some exceptional cases where the ownership passes
by survivorship. The exception cases were mentioned below:

• Two or more than two sons, grandsons, and great-grandsons

succeeding as heirs to the separate property of their paternal
ancestor take as joint tenants with survivorship.
 • Two or more grandsons of a daughter who is a member of a joint
family succeed as heirs to their maternal grandfather as joint tenants
with the right of survivorship.
• Two or more widows succeeding as heirs of their husband take as
joint tenants with survivorship rights.
• Two or more daughters succeeding as heirs of their father take as
joint tenants.
These are the only 4 conditions or exceptional circumstances in which
ownership of the obstructed property transfers to another before the
succession of the previous owner.

Illustration

An acquired the certain property from his brother who passed on issueless.
The acquired property within the hands of A will be a discouraging legacy for
the children of A. The children of A will acquire the property from A as it were
after his passing.

Unobstructed property
The property in which an individual secures and is intrigued by birth is called
unobstructed property. It is called unobstructed since the accrual of the right
to it isn’t obstructed by the presence of the owner. Hence property inherited
by a Hindu from his father, grandfather, and great grandfather is unobstructed
heritage as regards his claim male issues, that is, his sons, son’s and son’s
child. These rights arise on account of their birth in the family and the male
descendants in whom the property vests, are called coparceners. Thus, the
hereditary property in the hands of the final male owner is unobstructed.

Illustration

‘A’ acquired certain property from his father. Two children born to A, M and N
are coparceners with A. M and N will procure an interest by birth within the
hereditary property of A. Thus the property within the hands of A is unhindered
legacy, as the presence of the father is no obstacle or obstacle to his children
procuring an intrigued by birth within the property.

It is seen that the distinction between obstructed and unobstructed property

is recognized by the Mitakshara School and according to Dayabhaga School all
the properties should be considered as Obstructed property because no one
can inherit the property just after the birth or no one can have interest in
another’s property by birth. This difference of thought of both the school
demarcates Obstructed and Unobstructed Property.
Ancestral property
Ancestral Property is also known as Self-acquired Property after the partition
in a Joint Hindu family. As the name suggests Ancestral Property this property
is automatically inherited to next-generation people. This Ancestral property
was inherited till 3 generations or it is also considered as a part of Coparcenary
property as it also includes property descended from father, great grandfather.
Self-acquired property and the ancestral property is part of Separate property
as above discussed.

Separate Property is the second category of property under Hindu law in which
the property is inherited by the other members of non-blood relations.

In the case, Gurdip Kaur vs. Ghamand Singh Dewa Singh, 1965, the dictionary
meaning of Ancestral Property is “Property which has been inherited from the
ancestors” was accepted by the Court. It was also held that a property
inherited from a father, father’s father or great grandfather is ancestral
property.

A question arises that ‘who can acquire ancestral property?’ This was answered
in the case of Arshnoor Singh vs. Harpal Kaur, 2019, it was held by the Hon’ble
Supreme Court that “Under Mitakshara law, whenever a male ancestor inherits
any property from any of his paternal ancestors up to three degrees above
him, then his male legal heirs up to three degrees below him, would get an
equal right as coparceners in that property.”

After the amendment and enforcement of the Hindu Succession Act in 2005,
women were also allowed to enjoy the Self-acquired property or Ancestral
property with equal rights but this right on the ancestral property was not
earlier provided to the Women. Now, women and men have equal rights over
their ancestral property. There are some incidents of Ancestral property which
are mentioned below:

• The Ancestral Property should be for 4 generations old or we can say

that ancestral property should be continued for four generations and
should be inherited from generation to generation.
• The Ancestral Property should not be divided by the members and
when the division takes place, the property becomes the self-acquired
property.
• In the Ancestral Property, the person has the right or interest in the
property right from birth.
• The ancestral property rights are controlled by per strip and not
through per capita.
 • The Shares in the ancestral property is first determined for each
generation and then subdivided for the successive generation.

Joint family property

Joint family or coparcenary property is that property in which every coparcener
has a joint interest or right and over that property, the coparcener has a joint
possession. Or we can also say that the joint family property is the property
which is jointly acquired by the member of the family with the aid of ancestral
property.

Joint family Property defines as if any member of joint family property acquired
in his own name in the presence of an ancestral nucleus. In V.D. Dhanwatey
v. CIT, 1968, it was held that “The general doctrine of Hindu law is that
property acquired by a Karta or a coparcener with the aid or assistance of joint
family assets is impressed with the character of joint family property. To put
it differently, it is an essential feature of a self-acquired property that it should
have been acquired without assistance or aid of the joint family property. It is
therefore clear that before an acquisition can be claimed to be separate
property, it must be shown that it was made without any aid or assistance
from the ancestral or joint family property.”

Many times it is believed that property possessed by members of a joint family

is a Joint family property. In the case of Srinivas Krishna Rao Kango vs.
Narayan Devji Kango, 1954, it was held that “The Hindu law upon this aspect
of the case is well settled. Proof of the existence of a joint family does not lead
to the presumption that any property held by any member of the family is
joint, and the burden rests upon anyone asserting that any item of property
was joint to establish the fact.

Some considered Coparcenary property and Joint family property as two

different things but actually both are same under Hindu law.

The basic difference which is considered and said that both are different is that
in joint family property, both males and females are considered as members
whereas, In coparcenary, only male members are considered as a
member. Female members have no right or interest in the property by birth
in a Joint family but In Coparcenary, all members have equal right or interest
in the property by birth.

These little differences make people think that both Joint family property and
coparcenary are two different concepts otherwise it is considered as the same
under Hindu law.
Conclusion
Property related matters are a serious concern or problem that is faced by the
Indians. A lot of rules and amendments were made in order to lessen the
number of disputes related to property matters and the government has also
established many regulatory bodies which regulate the problem of property
and classification of property under Hindu law and Hindu succession act.

Land dispute or property dispute is not something new dispute or conflict which
arises in this generation. It has been prevalent since the very early period but
there were no provisions of law that can regulate the conflict of property.

Another conclusion which can be derived from this whole article is that with
the passage of time the status of female members or we can say that the rights
of female members are secured in the different forms of property which were
totally absent or neglected in the early period when there is no Indian
succession Act, Hindu law and many others.

Introduction
▪ The Hindu Succession Act, 1956 regulates the partition, which is the
process of division of property.
▪ Upon the death of an individual, his/her property, title, debts and
obligations may devolve upon the heir.
▪ An heir is defined as an individual who is legally entitled to inherit some or
all of the estate of another person who dies intestate.
▪ There are two types of partitions under the Hindu Succession
Act,1956, self-acquired property and ancestral property. Further
succession itself is of two types: Testamentary Succession and Intestate
Succession.
▪ The property inherited by a Hindu from his father's father and father's is
ancestral property.
▪ Property that the owner acquired using his own resources is his self-
acquired property, a property that he inherits from his family members is
an ancestral property.
▪ A self-acquired property becomes an ancestral property after a point.
The reverse is also true.
Separate Property or Self-Acquired Property
▪ Self-acquired property refers to any property of a person acquires
through efforts without anyone else’s help. This includes things like land,
businesses, and personal belongings.

Types of Self-Acquired or Separate Properties

▪ Property acquired by own exertion and not by joint labour with other
members of family, without detriment of family property.
▪ Property inherited by a Hindu from anyone other
than his father, grandfather or great-grandfather.
▪ Property obtained as his share in partition of a joint family
property, provided he has no issue (Issue in family law means children. If
children are there, then they would also obtain a right in the property by
birth as prior to partition it was part of Joint Family Property. After partition
the person along with his sons would constitute a coparcenary).
▪ Property devolving upon sole surviving coparcener – no widow in
existence who has power to adopt or having child in womb.
▪ Property obtained by gift or will.
▪ Governmental grants.
▪ Joint Family Property lost and subsequently recovered without the help
of joint family funds.
▪ Gains of learning.
▪ Income from separate property.
▪ Marriage gifts.
▪ Income from Joint Family Property allowed to a person for
their maintenance.
▪ Benefit of insurance policy–premium paid from Joint Family funds but for
benefit of the intended person only.

Rights regarding Separate Property

▪ Right to Transferring Self-Acquired Property:
o One can transfer self-acquired property to anybody. In the case
of ancestral property, all coparceners accrue their share in the
property by birth and it’s quite difficult to deny anyone their right in
their ancestral property.
▪ Right to Selling Self-Acquired Property:
o The owner of self-acquired property can sell such
property whenever he wants to sell but in the case of ancestral
 property, the consent of all the family members is required and it
takes a lot of effort and time, to sell ancestral properties rather than
selling the self-acquired property.

Who has Rights on Self-Acquired Property?

▪ Sons and daughters have the first right (as Class I heirs) over the self-
acquired property of their father if he dies intestate i.e. without leaving a
will and since both the son and daughter are also coparceners, they also
have the legal rights to get shares in ancestral property.

Can Self-Acquired Property be Challenged?

▪ Yes, one can challenge it. But before that some aspect has to be seen that
is whether property was self-acquired property of father’s property and if
so then father has absolute right to execute will under Section 30 of Hindu
Succession Act,1956.

Conclusion
One of the most vexed question under the Hindu Law, is, whether a property
acquires the character of self-acquired property or ancestral property. This
is important because, if the property assumes character of self-acquired,
then it falls into the hands of his sons as not coparcenary property but
would devolve upon on them in their individual capacity.

The Hindu Succession Act, 1956, states that any property that is acquired
by a person himself, either by way of his own resources or by way of
division of the ancestral property, is his self-acquired property. An
ancestral property turns into a self-acquired property when it is divided
among the family members who have raised a claim to it. As soon as the
property division is documented, the property becomes self-acquired.
Introduction

Who is Karta?
In Hindu joint family, the senior-most male ascendant is the head of the family
and known as Karta. Karta is the manager of the family. He takes care of the
family and its property. The relationship of Karta with the other members of
the family is not that of a partner, agent or principal. He stands in a fiduciary
relationship with the members of the family. The Karta of the family has
unlimited liability, also he is not responsible to any member of the family
except in case of fraud or misappropriation.

Although the senior-most male member of the family is the Karta, a junior
member can also become the Karta if all the coparceners agree to it. In the
case of Nopany Investments (Pvt) Ltd. v. Santokh Singh, the Karta of the
family was staying in the United Kingdom and thus was not able to manage
the family and the property and so, with the consent of all the coparceners
and family members his younger brother was appointed as the Karta although
there were members older to him.

Before Hindi Succession Amendment Act 2005, Hindu females were not
allowed to become the coparceners in a joint Hindu family, but after the
amendment daughters, are also allowed to become the coparceners in the joint
family property.

Older view: In Gangoli Rao vs. Chinnappa, A, the father has a wife and two
minor sons. A died leaving behind his interest in the family property. His widow
alienated the property. The alienation was challenged by the sons, Supreme
Court admitted the contentions of the sons and laid down the view that women
cannot be a coparcener and the Karta and this decision was upheld in Income
Tax Vs. Seth Govind Ram.

Modern View: In Mrs Sujata Sharma vs Shri Manu Gupta Delhi High Court
enlarged the scope of Section 6 of Hindi Succession Act, 1956 and stated that
a female can also become the Karta of the family.

Powers of Karta

1. Power to represent
The family does not have a corporate existence, it acts through its Karta. The
Karta is the sole representative member of the joint family when it comes to
any legal or social matter. Whenever there is a suit filed by the family it is filed
in the name of Karta or if there is a case against the family then also it is in
the name of the Karta. In the case of Rajayya v. Singa Reddy, it was held that
if there is a judgement against the Karta of the family, it automatically binds
all the other members of the family.

2. Power of management
In the case of Bhaskaran v Bhaskaran, it was held that the Karta of the family
has absolute power of management. As being the head of the family he cannot
be questioned by anyone. He can spend all the family funds without being
interrupted except in cases of fraud or misappropriation. Also, he holds some
special rights like that of the facility of eviction within which if there’s some
specific member demands some specific portion of the family property while
not the Karta acceding to such a requirement, he is often evicted type that
portion. He can discriminate between the members of the family and it cannot
be challenged, Although he cannot deprive anyone of their right to residence
and maintenance.

3. Power over income

All the members of the joint family hand over their income to the Karta of the
family. He looks after the allotment of the funds to the members of the family
according to their needs and looks after their requirements. He provides all the
members of the family with the required funds. He can discriminate between
the family members but he can’t deprive them of their right to maintenance.

4. Power of alienation
The Karta’s power of alienation is limited and it can be challenged by the
coparceners. Karta can exercise the power of alienation in these 3
circumstances:

1. Apatkale (Legal Necessity)

2. Kutumbarthe (Benefit of the estate)
3. Dharmarthe (Indispensable duties)
In the case of V.V.V. Ramaraju And Another vs Korada Malleswara Rao And
Others, it was held that in the above-mentioned circumstances alienation will
be binding on all the members of the Hindu joint family including minors. This
was decided by the Gauhati High Court in CIT v Gangadhar Sikaria Family
Trust where the court held that the transfer is not for the purpose of legal
necessity or benefit of the estate is voidable therefore is not void ab-initio
(Mukhtiar Singh v Amarjit Singh).

• Legal Necessity:
The scope of the word “necessity” is very broad. It depends upon case to case,
circumstances to circumstances. Still, for interpretation, it can be stated that
things which are deemed necessary for family members. In the case of Dev
Kishan v. Ram Kishan; when the Karta mortgaged and sold the joint family
property for the purpose of marriage of the two minor daughters the court held
that such action was an unlawful alienation as being violative of Child Marriage
Restraint Act, 1929.

• The benefit of the estate:

Anything done in furtherance of the benefit of the Hindu joint family is the
benefit of the estate. In the leading judgement of Balmukund vs
Kamlavati Supreme Court held that anything which is done for positive benefit
of the estate is included in the benefit of the estate.

• Indispensable duties:
This term signifies pious, religious obligations. A person under Hindu Law is
bound by the religious ceremonies such as Shraddha ceremony, Marriage as it
is held to be a sacred duty in Hindu law especially of daughters and most
important the funeral ceremony. A Hindu Karta can alienate the whole property
to perform the indispensable duties.

5. Power to compromise
The power to compromise all the disputes related to family is also vested in
Karta. He can take all decisions regarding the compromise whether being
related to family or its management. However, if his act of compromise is not
justiciable then it can be challenged in a partition. He can also compromise a
suit pending in the court and it will be binding on all the members. The only
exception to this is in case of a minor coparcener the compromise has to be
approved by the court as stated in Order 32 Rule 7 of the Code of Civil
Procedure.

6. Power to contract debts

The Karta has an implied authority to contract debts and pledge the credit of
the family for the ordinary purpose of the family business. The members
cannot escape from this liability even after partition.

• Loan on promissory notes: Whenever the Karta takes a loan or makes

execution of a promissory note for the reason being a family purpose
or business then an individual family member can also be sued
against its payment irrelevant of the fact that he/she was not a party
to it. Although they have a limited liability varying upon their share in
the joint family property.

7. Power to enter into the contract

The Karta of the family can enter into a contract on behalf of the whole family
and such contracts are binding upon the family members. The reason behind
giving this power is that if such power is not conferred upon him then it would
become impossible to carry out business.

Duties of Karta

• Maintenance
All the members of the Hindu Joint Family whether coparcenary or not have a
right to maintenance. It is the duty of the Karta to maintain all the members.
No member of the family can be deprived of the right to maintenance and if
they are they can challenge it before the court and claim their right and arrears
of maintenance.

• Marriage
Karta has a duty to engage the unmarried members of the family in wedlock
especially of daughters as their marriage is considered to be sacrosanct in
Hindu law. In the case of Chandra Kishore v. Nanak Chand, it was held that It
is the duty of the Karta to bear all the expenses of the marriage from the joint
family funds, or if in a case the expenses are incurred by some other sources
he’ll have to reimburse them when asked.

• Render accounts
In Hindu law, a Karta is not under the obligation to maintain the family
business account, but he is under the obligation to render the accounts if any
coparceners demand it at the time of partition. He can be held liable for any
misappropriation or fraud.

• Representation
The senior-most member of the family commonly known as Karta is the one
who represents the Joint Hindu Family. The family does not have a corporate
existence, it acts through its Karta. The Karta is bound to perform functions
like paying all the taxes, dues etc on behalf of his family. Karta can also be
sued on behalf of his family.

Liabilities of Karta

• Liability to maintain
The Karta of the Hindu Joint Family is liable to maintain all the members of the
joint family. All the members of the Joint Hindu Family have a right to
maintenance and residence. If the Karta is unable to maintain them he can be
sued for the same and the member can claim their arrears of maintenance.

• Liability to spend reasonably

The Karta also has the power to spend funds from the joint family account.
But such power is limited to some restrictions such as the Karta cannot use
the funds for unlawful purposes and also he should spend it wisely. If any of
the coparceners is not satisfied with the spending made by the Karta he/she
can file a suit against the Karta and discover the truth.

• Liability not to alienate property

The Karta is allowed to alienate the Joint Hindu Family Property only in certain
cases such as legal necessity, the benefit of the estate, in case of indispensable
duties. Other than this the Karta is not allowed to alienate the Joint Family
Property. If he wrongfully alienates the property then the coparceners have a
right to challenge the alienation.

• Liability not to start a new business

The Karta of the family is under the obligation not to start a new business
without the prior consent/permission of coparceners of the Joint Hindu Family.
Once the coparceners expressly or impliedly have given their consent, the
Karta can start a new business.

• Liability to render accounts

Until the family remains joint, the Karta has no obligation to maintain the
accounts. But as soon as the partition takes place the Karta is under an
obligation to render the accounts of Joint Family Property.

Conclusion
The concept of Karta in a Joint Hindu family is not only about a position in a
family rather it serves an important practical purpose. He is not a trustee,
partner or an agent of the family but is the head of the family who runs it in
the best possible way.

Earlier, the view was that a daughter cannot be a coparcener in the joint family
property but this view was abandoned after passing of Hindu Succession
Amendment Act, 2005. This Amendment Act has given daughters equal rights
as to that of sons (right of coparcenary). Section 6 of the Hindu Succession
Act, 1956 has been taken to the more logical consequence and now the female
member of the family can also become the Karta of the family as stated by
Delhi High Court in Sujata Singh vs Shri Manu Gupta.

Centralization is the best key to management and this is provided by the Karta.
As the Karta has a number of powers, many checks have also been imposed
on Karta so that he doesn’t misuse his power. Even though he misuses his
power the law has enough remedies to ensure that he doesn’t use his power
like this.