Assignment

LLB 402 - Intellectual Property Rights

Topic:– Compulsory Licensing For Radio-Music
In India Recent History And Economic Context

PSDA – 1

Submitted by: Submitted to:

Student Name Faculty Name

Jivitesh Singh (3316503820) Prof. Dr. Lisa P Lukose

Course: BA LL.B.
Semester: Eighth

UNIVERSITY SCHOOL OF LAW AND LEGAL STUDIES

Guru Gobind Singh Indraprastha University
Dwarka, Sector-16C, New Delhi-110078

Spring 2024
Contents
1 Joint Family and Coparcenary 1

2 Sub-schools of Mitakshara School 4

3 Rights of Coparcenars 5

4 Classification of Property 7
4.1 Joint family property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.1.1 Ancestral Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4.1.2 Property jointly acquired by Coparceners: . . . . . . . . . . . . . . . . . 11
4.1.3 Property thrown into common stock and blended property . . . . . . . . 11
4.2 Separate or Self-Acquired property . . . . . . . . . . . . . . . . . . . . . . . . . 12

5 Karta 14
5.1 Who is a Karta . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.2 Who can be a Karta . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5.2.1 Female Member . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.3 Position of Karta . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.4 Powers of Karta . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
5.5 Kartas Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

6 Trading families 17

7 Family Arrangements 17

i
1 Joint Family and Coparcenary
Anthropologists and sociologists mill do not agree as whether the Mitakshara joint family evolved
out of the despotic patriarchal family or the democratic village community. One thing is certain
that the Mitaksahara joint family is a unique contribution of Hindu jurisprudence which has
no parallel in any ancient or modern system of law. Whatever the sceptic may say about the
future of the Hindu joint family, it has been and it is still the fundamental aspect of the life of
Hindus. In fact, for a Hind there is no escape from the joint family. May be in one generation
it is broken it is brought to end by partition, but again in the next generation it comes into
existence automatically, and there is no way in which one can escape from it. It is in this sense
that we say that in Hindu law there is a presumption that every family is a Hindu family.

Composition of joint family: The Hindu Joint Family is peculiar to Hindu society only. It
consists of the common ancestor and all his lineal descendants upto any generation together with
the wife or wives (or widows) and unmarried daughters of the common ancestor and of the lineal
male descendants. It has to be clearly understood that the existence of the common ancestor is
necessary for bringing a joint family into existence; for its continuance common ancestor is not
a necessity. The death of the common ancestor does not mean that the joint family will come
to an end.

Corporate personality and composite family: A Hindu joint family is not a corporation. A
Hindu joint family has no legal entity distinct and separate from that of the members who con-
stitute it 1 . It is not a juristic person either2 . Hindu family is a unit and in all affairs it is
represented by its karta or head.

Hindu undivided family: For the purposes of assessment of tax, the revenue statutes use the
expression, ‘Hindu Undivided Family’. This appears to be slightly different from the definition
of a Hindu Joint family. For instance, for the purpose of revenue statutes, there can be an
undivided family consisting of a man, his wife and daughters or even of two widows of a sole
surviving coparcener. A single male or female cannot make a Hindu joint family even if the
assets are purely ancestral3 .

Presumption of jointness: This has been an accepted proposition that every Hindu family
is presumed to be joint family 4 . The undivided joint family is the normal characteristic of a
Hindu family. Presumption is that the members of the family are living in a state of jointness,
unless contrary is proved5 .

1
Anchuru Vs. Gurijala ,1961 A.P 434
2
Chotelal Vs. Jhandelal,1972
3
Gowli Vs. Commisoner of income tax ,Mysore ,1966
4
Jagannath Vs. Lakhannath,1981
5
Kethaperumal Vs. Rajendra,1959

1
 No presumption that joint family holds joint property: There is no presumption that joint
family possesses joint property. It has not been seen that normally a Hindu joint family is joint
in estate, but there is no presumption that the properties held by a member of joint family
properties. When a property is purchased in the joint family name, it is for the person who
alleges it to be separate property , to prove it 6 .

Daughter has also been made a coparcener by virtue of section 6(1) of the Hindu Succession
( Amendment ) Act, 2005.

Coparcenery: Coparcenery is a narrow body of persons within a joint family, and consists of
the father, son, son’s son’s and son’s son’s son. Like joint family, to begin with, it consists of the
father and his three male lineal descendants; in its continuance, the existence of the father-son
relationship is not necessary. Thus, a coparcenery can consist of grand-father and grand-son, of
brothers, of uncle and nephew and so on.

Females as Coparceners after Hindu Succession (Amendment) Act, 2005: After the passing
of Hindu Succession (Amendment) Act, 2005 daughters have been included as ceparceners in the
Hindu Joint family. This has been done by virtue of section 6, Hindu Succession (Amendment)
Act, 2005. Before the said Amendment, females were not included in the copareenary and thus,
did not possess any rights of the coparceners.

In diagram 1 A is the ancestor and B to H are his seven lineal descendants. It is evident
that coparcenary consists of A, B, C and D. And E, F, G, H are not coparceners.Now if A dies
(diagram 2) the coparcenary will consists of B, C, D and E.

Incidents of coparcenership: The incidents of coparcenership are7 :

• A coparcenor has an interest by birth in the joint family property, though until partition
takes place, this is an unpredictable and fluctuating interest which may be enlarged by
6
Selyaraj Vs. Radhakrishna,1976
7
N.jayalakshmi Vs. R. Gopala

2
 deaths and diminished by births in the family;

• Every coparcener has the right to be in joint possession and enjoyment of joint family
property- both these are expressed by saying that there is community of interest and unity
of possession.

• Every coparcenor has a right to be maintained including a right of marriage expenses being
defrayed out of joint family funds.

Unpredictable and fluctuating interest:The most remarkable feature of interest by birth is that
the interest by which a coparcenor acquires by birth is not a specified or fixed interest. At no
time before partition can it be predicted that he is entitled to so much share n the family property.

Community of Interest and Unity of Possession: One of another most important features of
Mitakahara coparcenary are community of interest and unity of possession People have got own-
ership over the entire property and they have got right to enjoy in common over that property.
The property belongs to all the coparceners. Here possession of one is possession of all.

Shambhu v. Phul8 the Apex Court stated that ”Possession of one is possession of all means
that if a property is in possession of a coparvener. through him other coparceners are also be-
lieved and considered to be in the possession of the property. Till the removal is proved, the
possessor of the property cannot take the privilege of adverse possession.

Illegitimate son as coparcener: Hindu law has never considered an illegitimate child as a filis
nullius. An illegitimate son, particularly the dasiputra has always been regarded as a a member
of his putative father’s joint family and as such has a right to be maintained out of the joint
family funds during his entire life. However, he has not been considered as a coparcenor9 .

Coparcenary between a sane and insane person: There can be a coparcenary between a sane
and insane person. A Corparcenor gets his right in the Corparcenory property by birth and
there is nothing in hindu law which shows that such a right is irrevocably extinguished on a su-
pervening insanity. Under hindu law, an insane Corparcenor has not right to claim partition has
not right to a share if partition takes place, but this does not make him cease to be a corparcenor.

Coparcenary between father and son born out of civil marriage: If a Hindu performs a mar-
riage under the Special Marriage Act, 1954, with a non-Hindu, his interest in the joint family
property is severed. But does it mean that there cannot be a Corparcenery between such a
Hindu and a son born to him out of the marriage. A Corparcenery will come into existence
between him and his son provided his son is a Hindu10 .

8
AIR 1971 SC 1337
9
Gur Naraindas Vs. Gur Tahaldas ,1952 SC 225
10
R.Shridharan Vs. The commissioner of Wealth tax,1970 Mad 249

3
 Coparcenary within a coparcenary: It is possible that separate Corparcenories may exist
within a corparcenory.

The Supreme Court considered in Bhagan v Reoti 11 . Where it was observed that:
“Hindu law recognizes only the entire joint family or one or more branches of that family as
a corporate unit or units and that the property acquired by that unit in the manner recognized
by law would be considered as joint family property. Coparcenary is a creature of Hindu law.
The law also recognizes a branch of the family as a subordinate corporate body.”

2 Sub-schools of Mitakshara School

Mitakshara is further divided into five sub-schools namely as following:

1. Benaras Hindu law school

2. Mithila law school.

3. Maharashtra law school.

4. Punjab law school.

5. Dravida or Madras law school.

These law schools come under the ambit of Mitakshara law school. They enjoy the same fun-
damental principle but gives preference to certain treaties and commentaries which control the
certain passage of Mitakshara.

1. Benaras law school: This law school comes under the authority of the Mitakshara law
school and covers Northern India including Orissa. Viramitrodaya, Nirnyasindhu, and
Vivada are some of its major commentaries.

2. Mithila law school: This law school exercises its authority in the territorial parts of Tirhoot
and north Bihar. The principles of this law school prevail in the north. The major
commentaries of this school are Vivadaratnakar, Vivadachintamani, and Smritsara.

3. Maharashtra or Bombay law school: The Maharashtra law school has the authority to
exercise its jurisdiction over the territorial parts including Gujarat Karana and the parts
where the Marathi language is proficiently spoken. The main authorities of these schools
are Vyavhara Mayukha, Virmitrodaya, etc.

4. Madras law school: This law school tends to cover the whole southern part of India. It
also exercises its authorities under Mitakshara law school. The main authorities of this
school are Smriti Chandrika, Vaijayanti, etc.
11
1962 SC 287

4
 5. Punjab law school: This law school was predominantly established in east Punjab. It had
established its own customs and traditions. The main commentaries of this school are
Vramitrodaya and it established customs.

3 Rights of Coparcenars
1. Community of interest and unity of possession: No coparcener is entitled to exclusive
possession of any part of the coparcenary property; nor is any coparcener entitled to any
special interest in such property.As observed by the Privy Council in Katama Natchairv.
Rajah of Shivagunga12 , “there is community of interest and unity of possession between
all the members of the family”.

2. Share of Income: A member of a joint family cannot, at any given moment, predicate
what his share in the joint family property is. Such a share becomes defined only when a
partition takes place. The reason is that his share is a fluctuating one, which is liable to
be increased by deaths, and diminished by births, in the family. It follows from this that
no member is also entitled to any definite share of the income of the property.According
to the principles governing a Hindu undivided family, the whole income of the joint family
property must be brought to the common purse of the family, and then dealt with as per
the rights of the members to enjoy such property.

3. Joint possession and enjoyment: Each coparcener is entitled to joint possession and enjoy-
ment of the family property. If he is excluded from doing so, he can enforce this right by
way of a suit. He is not, however, bound to sue for partition. In a suit for joint possession,
the Court would declare his right to joint possession, and further direct that he should be
put into such joint possession.

4. Right against exclusion from joint family property: If a coparcener is excluded by other
coparceners from the use or enjoyment of the joint property, the Court may, by an injunc-
tion, restrain such coparceners from obstructing him in the enjoyment of the property. In
one case, A and were members of a joint family. A prevented from using a door which
was the only means of access to the rooms which were in B’s occupation. It was held that,
in the circumstances, the Court could, by injunction, restrain A from disturbing in the
use of the door13 . In another case, A and were members of a joint family, which owned
a shop in Poona. A prevented from entering the shop, inspecting the account books, and
taking part in the general management of the shop. sued A for an injunction, restraining
A from excluding from the joint possession and management of the shop, and the Bombay
High Court held that was entitled to succeed14 .

5. Right of maintenance and other necessary expenses: Every coparcener is entitled to be

maintained out of the estate of the family. For this purpose, he is entitled to receive, from
12
(1893 9 M.I.A. 539)
13
Anani v. Gopal, 1895, 19 Bom. 269
14
Ganpat v. Annaji, 1899 23 Bom. 144

5
 the coparcenary property, maintenance for himself, his wife and children, as also for those
whom he is bound to maintain. Besides such maintenance, a coparcener is also entitled to
get money from the coparcenary property for the purpose of the marriage of his children
and for the performance of the sradha and upanayana ceremonies.

6. Right to restrain improper acts: Every coparcener has the right to restrain improper acts
on the part of other coparceners, where such acts cause substantial injury to his rights as
a member of the family. Thus, if a coparcener erects a building on land belonging to the
joint family, so as to materially alter the condition of the property, he may be restrained
by an injunction from doing so.

7. Right to enforce partition: Every adult coparcener is entitled to enforce a partition of a

coparcenary property. He cannot, however, file a suit for a declaration of the amount of his
share, as he has no definite share, until partition. In one leading case 15 , the Bombay High
Court held that there is one important exception to the above rule, namely, that where
the father is joint with his own father or other collateral members, a son cannot enforce
a partition against the will of the father. This exception is also recognised in the State of
Punjab also, but not in other parts of India.

8. Right to account: A coparcener has no right to ask for accounts from the manager as
regards his dealing with the coparcenary property and the income thereof, unless of course,
such coparcener is suing for a partition, in which case, he would have such a right.

9. Right of alienation: No coparcener can dispose of his undivided interest in coparcenary

property by gift. Nor can he alienate such interest for value, except in the State of Tamil
Nadu, Madhya Pradesh, Maharashtra and Gujarat. An unauthorised alienation is not
however, absolutely void; it is merely voidable at the option of the other coparceners.
However, it is open to a creditor, who has obtained a decree against the coparcener per-
sonally, to attach and sell his undivided interest, and if this is done, the purchaser can
have his interest separated by a suit for partition.

10. Right to impeach unauthorised alienations: Every coparcener has the right to impeach
alienation by the manager, or any other coparcener, in excess of their powers. Such alien-
ation can be impeached only by a coparcener or by a transferee who has acquired the entire
interest of a joint family in the property alienated.

11. Right to renounce: A coparcener has the right to renounce his interest in the coparcenary
property. He can do so by expressing his intention to that effect, and if he does so, no
other formalities would be necessary. Such a renunciation must, however, be in favour of
the whole body of coparceners. Even if he renounces in favour of one individual member,
the renunciation will operate for the benefit of all the coparceners.
15
Appaji v. Ramchandra, 16 Bom. 29

6
 12. Right of survivorship: All the coparceners of a joint Hindu family have a right of survivor-
ship in respect of the joint family property. Thus, if one coparcener dies, his undivided
interest in such family passes by survivorship to the remaining coparceners, and not to his
heirs by succession. (The circumstances in which this right of a coparcener does not exist
have already been considered earlier.)

13. Right to make self-acquisition: A coparcener has the right to acquire property of his own,
and keep it as his self-acquired property. The other coparceners would have ho claim on
such property.

14. Right to manage: A coparcener, who is the senior-most member of the family, is entitled to
manage the coparcenary property and business, and to look after the interests of the family
on behalf of the other coparceners, unless he is incapacitated from doing so by illness or
other like and sufficient cause.

4 Classification of Property
Apratibandha Daya (unobstructed heritage) property inherit from direct male ancestor but not
exceeding three degree who is higher than him. In case Radha v Ram8 it was held that the
property can be acquired by son and son’s son by the interest of birth. Under the concept heritage
is devolved by survivorship. Sapratibandha Daya (Obstructed Heritage) property inherited from
any other relations i.e. paternal uncle or brother, nephew etc., under this its devolved by
inheritance. Under Hindu Law, the property is furthered divided into:

• Joint Family Property: Important aspect of Hindu Joint Family. Mainly under this prop-
erties are inherited from ancestral Property by any Ancestor or ancestress

• Separate Property: In this property acquired by individuals will be involved.

Unobstructed heritage:- Property in which a person acquires an interest by birth is called un-
obstructed heritage. It is so called because the accrual of the right to such property has no
obstruction. Thus property inherited by a hindu from his father,father’s father,or father’s fa-
ther’s father, is unobstructed heritage. Their right to such property arises from mere fact of
their birth in the family and as soon as they are born,they become coparceners of such property
along with their paternal ancestor. Ancestral property is therefore is unobstructed heritage.

Joint family property and separate property: Secondly, and rather significantly, property is
classified into:
a) Joint family property or coparcenary, and b) Separate property or self-acquired property

4.1 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

7
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”16

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.

The joint family property comprises of:-

• Ancestral property

• Property mutually acquired

• Property which is thrown into common stock

• Property which is attained by any or all of the coparceners with the aid and support of
the joint family funds

4.1.1 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.

16
1961 AIR 1268

8
 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 Singh17 , 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 Kaur18 , 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.

Property inherited from father, father’s father and father’s father’s father: This
is the same thing as sapratibandha daya and its property which is called ancestral property.

Property inherited from maternal grandfather: According to Mitakshara this head

is not necessary, as under the Mitakshara, properly inherited from any person, other than the
17
AIR 1965 P H 238
18
MANU/SC/0864/2019

9
father, father’s father and father’s father’s father, is obstructed heritage and there is no distinc-
tion whether the property is inherited from a paternal uncle or maternal uncle. But two Privy
Council decisions have necessitated this classification. In Maked v. Manbhar19 a case under the
Punjab Customary Law, the Supreme Court held that the property inherited by a person from
his maternal grandfather is not ancestral qua his descendants.

Property inherited from any other relation: It is a settled law that property inherited
by a person from any other relation (i.e., other than those in (a) and (b) above) is not ancestral
property. Such property is his separate property and his son does not take any interest in it by
birth. For example, property inherited from a maternal uncle or paternal uncle will constitute
Property received in gift: Under this head the gift of the following properties may be considered:

1. gift of his self-acquired property by the father to son; and

2. gift of joint family property.

• by father-karta; or
• by karta.

Gift by father of self-acquired property: The question is, if a father gives his self-acquired
property, movable or immovable, by gift inter vivos or by will to one of his sons, to the exclusion
of others, whether, the son will take it as ancestral property. The difficulty arises on account
of two principles of Hindu law that come into application: () Every Hindu has full power of
disposal over his separate property; (ii) When self-acquired property of a Hindu devolves on his
son by inheritance, the son takes it as ancestral property in which his son has an interest by
birth. In accordance with the first principle the father has the power of giving the property in gift.

Gift by father of a small portion: It has been all along recognized that the father-karta
has the power of making a gift of small portion of movable joint family property as a gift of love
and affection. A gift of love and affection is made to a person with whom father stands in the
relationship of love and affection, such wife, son, daughter, daughter-in-law or son-in-law. In
every case, gift has to be a small portion of the joint family movable property. What is a small
portion will depend up the total quantum of joint family property20 .

Gift of joint family property by the karta: It is an established rule of Hindu law that
the Karta of the joint Family, whether father or someone else, has the power to make a gift of
ancestral immovable as well as immovable property within the seasonable limits in discharge of
his religious duties or for pious purposes. Such a gift can be inter vivos and not by will21 . In
the hands of donee the property will be his separate property.
19
(1958) S.C.J. 1268
20
Amathayee v. Kumarsen, 1967 S.C. 569
21
Guramma v. Mallappa, 1964 S.C. 510

10
4.1.2 Property jointly acquired by Coparceners:

Here the question is: whether the property jointly acquired by coparceners with their joint
labour and without the aid of the joint family property is joint family property or joint property
of the acquirers. It is now settled law that presumption is that the property so acquired will
be joint family property in which sons will acquire an interest by birth, unless it is proved that
the acquirers intended to own the property as co-owners between themselves in which case it
will be joint property, as distinguished from joint family property22 . In case the acquirers can
show an agreement that they acquired the property as partners, the property will be partnership
property, governed by the Indian Partnership Act, 1932.However, if only some of the coparceners
jointly acquire property without the aid of any ancestral nucleus, the presumption will not apply
and such property will be presumed to be joint property, unless contrary is proved23 .

Income of hereditary profession: The incomes of hereditary profession, such of a priest, con-
stitute joint family property24 .

Property exchanged for joint family property: When some property is acquired in exchange
of joint family property, such property will be joint family property25 .

4.1.3 Property thrown into common stock and blended property

When a coparcener mixes his separate property with the joint family property, does his separate
property become part and parcel of the joint family property? When a coparcener deals with
his separate property in a manner that he leaves no doubts that he wants to treat it at part of
joint family property, such property becomes joint family property. This is known as throwing
into the common stock. If he mixes his property with the joint family property is is known as
blending. The law of blending or throwing into the common stock is well settled through the
numerous decisions of the High Courts and the Supreme Court. In Pushpa Devi v Commissioner
of Income Tax 26 , the court laid down that blending is different from renunciation of the property
or surrendering property in favour of others to the exclusivity of others. It is necessary that it
must be done in favour of all the coparceners and it cannot be revoked” Such an act is done
voluntarily and it could be by explicit and express words by conduct of the parties. The existence
of coparcenary property is mandatory for blending of separate property into ancestral property
Blending of the property should not be considered as a gift as there is no donor and dance
in such cases. Intention plays a pivotal role in such cases. The intention mentioned need not
be expressed. It can be implied also. Recovered joint family property: When one coparcener,
without any assistance from the joint family funds or from his fellow coparceners recovers with
the acquiescence of his coparceners, ancestral property which has been lost of the joint family
22
Kishan v. Ranachari, 1965 Mad. 340
23
Sudarsaanam v. Narasimhulu, (1902) 25 Mad. 149
24
Lakshami v. Ishroo, 1977 S.C. 1694
25
Gurubachan Singh v. Puran Singh, 1961 S.C. 1963
26
AIR 1977 SC 2230

11
without any possibility of recovery, the property so recovered will be: (a) the separate property
of the recoverer if the recoverer is the Karta of the family, irrespective of the fact whether the
recovered property is immovable or movable, (b) if the recoverer is any other coparcener, and
the property is movable, the property will be the separate property of the recoverer, and (c) in
case the recoverer is a coparcener other than the Karta and property recovered is immovable
property, the recoverer will take one-fourth of it as his separate property and the rest will become
joint family property in which all members, including the recovering coparcener, will have an
interest. Accretions: Here the term accretions has been used in a wider sense including all
income, accumulations, or acquisitions of property made with the joint family nucleus. In its
ordinary meaning accretions means (a) accumulation of income of the joint family property. (b)
property purchased or acquired with the income of the joint family, and (c) proceeds of the sale
of joint family property or property purchased out of such sale proceeds. These have been, all
along, accepted as part and parcel of joint family property.

4.2 Separate or Self-Acquired 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.

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 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.

Gain of learning: According to Katyayana’s enumeration, gains of learning fall under the fol-
lowing categories:

• Anything gained by proving superior learning after a prize has been offered

• Anything obtained from a pupil or by officiating as a priest, or for answering any question
or for determining a point in dispute, or for reciting the Vedas, or by display of knowledge
or by success in debate

• Anything gained by proving superior skill by winning from another a stake at a play.

• Anything obtained by boast of learning, anything received from a pupil or by the perfor-
mance of a sacrifice;

• Anything obtained by an artist by performance and display of art, or anything which is

gained in excess or prescribed hire, and

• Anything gained from superiority in learning, and what has been acquired in a sacrifice or
from a pupil or acquired by art and science.

Before 1930, our courts made a distinction between a specialized training and ordinary training.
In the former case the earning of a coparcener out of his education or training were treated as
part of the joint family property, while in the latter case it constituted his self-acquired prop-
erty. This distinction was artificial and unsatisfactory. In the year 1930, the Hindu Gains of
Learning Act was passed and this distinction was done away with. It is laid down that whether
the training is ordinary or specialized any gains made on account of training or education will
constitute separate property of the acquirer. The Act defines ’learning’ as education whether
elementary, technical, scientific, special or general and, ’training as every kind of training which
is usually intended to enable a person to pursue any trade, industry, profession or avocation
in life. ’Gains of learning’ are defined as acquisitions of property made substantially by means
of learning, whether such acquisitions be made before or after the commencement of the Act
and whether such acquisitions be the ordinary or the extraordinary result of such learning. It is
immaterial whether the education or training was wholly or partly imparted to him out of joint
family funds or with the aid of the funds of any member of the joint family. It is also immaterial
that while he was receiving training or education, he or his family was maintained or supported,
partly or wholly, out of joint family funds or by the funds of any member of the joint family27 .

However, if the joint family funds are invested in the business, industry or profession which
the coparcener takes up after receiving education or training, the acquisitions may not be his
separate property. For instance, if a coparcener is trained as an engineer, and the joint family,
in view of his training, opens up an industry in which joint family funds are invested, the profits
27
Venkatsubramania v. Eswara 1966 Mad 266

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of this industry will not be separate property of the engineer-coparcener, though if he is allowed
to draw a salary or allowed to take a part of profit for his skill, that will constitute his separate
property.

Income of the joint family allotted to a member for his maintenance: When the Karta gives
a coparcener the right in use some joins family property for his maintenance, and there is some
surplus income remaining after the maintenance, or any property is purchased out of the sur-
plus, will it be joint family property or separate property of the coparcener? The Madras and
Andhra Pradesh High Courts take the view that such surplus or property purchased out of sur-
plus will be separate property of the coparcener28 . The former said that the acquisitions were as
much the result of his own industry and thrift as they were the natural products of the land itself.

Benefit of insurance policy: If the Karta insures himself, or a member of the amily is insured,
and premium are paid out of the joint family funds, then, who would be entitled to the benefits of
the policy? The Madras High Court took the view that benefits belong to the insured personally
and constitute his separate property29 .

5 Karta
In the entire Hindu Joint Family ‘Karta’ or ‘Manager’ occupies a very important position. There
is no office or institution in any other system of the world can be compared with it. He is a
person with limited power but he possess such vast power with in ambit of joint family which
nobody enjoys.

5.1 Who is a Karta

Karta means manager of joint family and joint family properties. He is the person who takes
care of day to day expenses of the family looks after the family and protects the joint family
properties.

5.2 Who can be a Karta

It is a presumption that ordinarily senior most male member is the Karta and Karta is always
a member in the family no outsider or stranger can become a Karta.
The senior most male member so long as he is alive may be, aged, infirm or ailing continues
as Karta. By his death Kartaship will pass on to next senior most male member.
In the presence of senior most male member a junior cannot act as Karta but if all coparcener
agree, a junior also can become a Karta.
Karta owes his position by consent or agreement of all coparceners.
28
Ramnayya v. Kalanda 1939 Mad 911
29
Balamba v. Krishnaya, 1914 Mad 595

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5.2.1 Female Member

Generally female member cannot become Karta but in exceptional circumstances female also
can act as Karta. Nagpur High Court held the view that mother even though not a coparcener,
in the absence of adult male member can act as Karta.
In Commissioner of Income Tax Vs. Seth Govind Ram, the Supreme Court held mother or
any female member could not be Karta of joint family and therefore cannot alienate joint family
property.

5.3 Position of Karta

Karta is sui generis (of its own kind) the relationship between him and members is not like
principal or agent or like partners in a partnership firm.
He is the head of the family and acts on behalf of other members.
He stands fiduciary relationship with other members but he is not a trustee, nobody can
question what he spent unless charges of misappropriation.
When any coparcener charges of improper alienations made by Karta, burden of proof lies
on him to prove such are malafide act of Karta.

5.4 Powers of Karta

With in joint family Karta has vast powers with limitations.

1. Power of management:- He is the head of the family, his management powers are absolute.
He may manage the family affairs and family property and business the way he likes for
the benefit of estate, no one can question his management.

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

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

4. Power to compromise:- He has power to compromise all disputes relating to family prop-
erty or their management. He can compromise pending suits, family debts, and other
transactions. However if his act is not bonafide can be challenged in a partition.

5. Power to refer a dispute to arbitration:- Karta has power to refer any dispute to arbitration
and Arbitrator’s award is binding on all the members.

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

behalf of the family any debt due to the family, also has power to pay debt or to make

15
 pack payment of debt. He has power to contract debts for the family such debts incurred
in the ordinary course of business are binding on entire joint family. Even Karta when
takes loan or execute promissory note for family purpose or for family business joint family
is liable to pay such loan.

7. Power to enter into contract:- Karta has power to enter into contract and such contract is
enforceable against the family.

8. Power of alienation:- Nobody in the family has power to alienate joint family property.
However Karta has power of alienation under 3 circumstances.

• Legal necessity
• Benefit of estate.
• Indispensable duties

5.5 Kartas Liabilities

Karta has vast powers same time his position is fiduciary and has lot of responsibilities and
liabilities.

• Liable to maintain:- Karta is responsible to maintain all the members of joint family. If he
improperly excludes any member from maintenance, he can be sued for maintenance and
also arrears of maintenance.

• Liability to render accounts:- As long as family remains joint, Karta is not supposed to
keep accounts, but when partition takes place at that time he is liable to account for
family property. If any of the coparcener is not satisfied with his account can institute
a suit against Karta to discover the truth and to know any misappropriation is made by
Karta.

• Liability to recover debts due to the family:- Kartas should realize all debts due to the
family with in reasonable time but should not allow them to bar by limitation.

• Liability to spend reasonably:- As Karta of joint family has control over the income and
expenditure of the family, he is custodian of surplus income. However he should spend
family funds reasonably and for the purpose of the family.

• Liability not to alienate coparcenary property:- Unless it is for benefit of family, estate or
for necessity Karta cannot alienate joint family property without the consent of all the
coparceners.

• Liable not to start new business:- Unless adult coparceners of the family expressly or
impliedly consents, Karta cannot start a new business.

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6 Trading families
Trading families (or the joint family ancestral business) though basically have the characteristics
of a joint Hindu family, yet in some respects they are distinct from the ordinary non-trading
joint family. When a Hindu starts his business independently it is his separate business and
constitutes his separate property. On his death it passes, like any other heritable property, into
the hands of his sons and becomes a joint family business. When the business is carried on
exclusively by the members of the joint family it is not a partnership business and the provision
of the Partnership Act, 1932, do not apply. When father and son start business, there is a
presumption that it is a joint family business. The Hindu joint family business does not arise
out of a contract between the members, but it comes into existence by operation of law. It
would be wrong to compare the joint family business with partnership business and it would
be incorrect to say that it has many incidents of a partnership. The death of a coparcener or
the Karta does not mean dissolution of the joint family business, as is the case with business or
trade and as assets, including the goodwill, constitute joint family property A minor coparcener
becomes its member by virtue of the fact that he is born in the family, his admission in the joint
family business does not depend on any agreement The true legal position, therefore, is that, as
between coparceners, the fact that the family is engaged in trade does not convert it in relation
to the trade into a partnership In respect of trading families, ordinarily, it is the Karta alone
who acts on behalf of the family and represents the business, unless some other coparcener is
association with management of business, in that case acts of both will bind the joint family.

Power of the Karta of the trading joint families: The Karta of the trading family has all the
powers of the Karta of an ordinary family. He had additional powers. For instance, the Karta
of the trading family can take debts in the course of business. For much debts except the Karta,
no one else is personally liable: their liability extends only to the extent of their interest in the
joint family property. It has been held that the joint family is also liable for the torts of the
Karta committed in the course of business.

7 Family Arrangements
A family arrangement is a very ancient institution of Hindus. Recently a long line of cases in the
Supreme Court has endeavoured to settle the law. Family arrangements have been used since
long as an instrumentality so settle, prevent and forestall disputes within the family or between
the family and strangers closely connected with the family ”Though conflict of legal claim in
pridesenti or in futuro is generally a condition for the validity of a family arrangement, it is not
necessarily so. Even bona fide disputes, present or possible, which may not involve legal claims
will suffice. Members of a joint family may, to maintain peace, or to bring about harmony in
the family, a into a family arrangement. If such an arrangement is entered in bona fide and the
terms thereof are fair in the circumstances of a particular case, courts will more readily give
assent to such an arrangement than to avoid it. It is not necessary that there must exist a

17
dispute, actual or possible in future, in respect of each and every law of property and amongst
all members arrayed against each other. It would be sufficient f it is shown that there were
actual or possible claims and counter-claims by parties in settlement whereof the arrangement
as a whole has been arrived at thereby acknowledging tale in one to whom a particular property
falls on the assumption that he had anterior title therein. In this context, family is not to be
understood in a narrow sense of being a group of persons whom the law recognizes as having a
right of succession of having a claim to a share in the disputed property The consideration for a
family settlement in the expectation that such a settlement will result in establishing or ensuring
amity and goodwill amongst the relations. Such an arrangement can be made in a compromise
entered into in a suit and embodied in a decree.

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