Explain the origin and growth and constitution of Hindu Undivided family

CONCEPT OF JOINT HINDU FAMILY UNDER MITAKSHARA LAW

A joint and undivided Hindu family is the normal condition of Hindu society. A joint Hindu
family consists of all persons who are lineally descended from a common ancestor, and includes
their wives and unmarried daughters.

On marriage, a daughter ceases to be a member of her father8s family, and becomes a member of
her husband8s family.

Thus, if A has two sons, X and У, and an unmarried daughter Z, all of them (i.e., A, X, Y and Z)
would constitute the joint family. On her marriage, Z would cease to be a member of this joint
family, and would become a member of the joint family of her husband.

However, the existence of joint estate is not absolutely necessary to constitute a joint family, and
it is possible to have a joint Hindu family which does not own any estate. But, if joint estate
exists, and the members of that family become separate in estate, the family ceases to be joint.

Mere severance in food and worship does not, however, operate as a separation. (Chowdhry
Ganesh Dutt v. Jewach, 1904 31 I.A. 10)
Thus, although a Hindu family is presumed to be joint (in food, worship and estate), there is no
presumption that it possesses joint property or any property at all. This would have to be proved
by producing affirmative evidence to that effect. (Ram Narain Chand v. Purnea Banking
Corporation Ltd., A.I.R. 1953, 110)
Thus, a joint Hindu family does not consist of male members only. It may consist, for instance,
of a single male member and widows of the deceased male members. Likewise, it may consist of
one male and one female member, e.g., a brother and his unmarried sister, or a son and his
mother (provided the female member is entitled to a share or to maintenance), or it may consist
even of two or more surviving females, as for instance, two or more widows, or an unmarried
daughter and her mother, and so on.
A joint Hindu family, as such, has no legal entity which is distinct and separate from that of the
members who constitute such a family. In this sense, it is different from a corporation or a
company which is considered to be a distinct legal person in the eyes of law.
A joint Hindu family is a unit to which no outsider can be admitted by consent of the parties
concerned. It is a status which can be acquired only by birth or by adoption, and in the case of
women, by marriage. Such a joint family may be broken up by separation of individual members
or by a partition amongst all the members. Such a separating member would then form a new
family with his descendants, and a new joint family would come into existence.

Who are the members of a Hindu Joint Family?

The following category of persons constitutes joint family:4
(1) Persons lineally connected in the male line.
(2) Collaterals.
(3) Any person related by adoption.
(4) Dependants.
(5) Son born out of marriage between a male Hindu and Christian woman under Special
Marriage Act, 1954.
Females:
(1) The wife or widows of deceased male members and
(2) Maiden daughters.
One of the special features of joint family is that it includes illegitimate children also. They are
treated to be the members of their father8s family. Sometimes married widowed daughters also
settle in the joint family and are treated as members thereof, entitled to maintenance.
Presumption of jointness:
There is a general presumption of jointness of every Hindu family. The Orissa High Court has
observed that the leading principle of Hindu law is that in absence of proof of division the
presumption is that every Hindu family is joint in food and worship and estate.
The presumption is stronger in case of brothers than in case of cousin and the farther one goes
from the founder of the family, presumption becomes weaker and weaker. Unless it is proved
contrary, a family amongst Hindus is presumed to be joint. If one takes the plea of partition, he
has to prove it. The following presumptions can be taken into consideration as to the family is
joint or separate or whether a particular property belongs to the joint family or to an individual
coparcener:4
(1) It is a general presumption that every Hindu family is joint in food, worship and estate.
Hence burden of proof is on the person who alleges separation. The members of a family may
reside separately and mess apart; still they may remain joint in estate. Although separate
dwelling and mess is not the conclusive proof of separation still they are material factors along
with the other facts to determine partition. The strength of presumption of union necessarily
varies in each case, it is stronger in case of brothers, but it lessens in case of cousins and other
relatives.
(2) Once a family is admitted to be joint, it is presumed to be joint in absence of separation. In
case of real brothers constituting a joint Hindu family, the presumption of jointness is very
strong. It is for the persons alleging severance of joint status to prove it.
(3) Where it is proved or admitted that partition has been effected, the burden of proving that the
estate remains joint is on the person who alleges it.
(4) Where it is proved that the family is joint and it possesses joint property, the presumption is
that all the property is joint. But from the mere fact that a family is joint, no presumption can be
drawn that it possesses joint property or that it has some property. Existence of a joint family
does not lead to inference that the property held by any member of the family is joint.
Burden of proof:
When it is proved that the entire family has a common dwelling and is jointly living the onus is
on the person who is setting up the case of severance. But the law may vary according to the
circumstances of a case and no abstract proposition of law governing every case, howsoever the
facts may be different, can be laid down.
Where at the time of acquisition of a particular property, the joint family had sufficient nucleus
for acquiring it, the property in the name of any member of the joint family should be presumed
to be acquired from out of joint family funds so as to form part of the joint family property
unless the contrary is shown.
Where any property is acquired in individual capacity by the members of a joint family, that does
not constitute joint property. But if any member claims it to be joint, he has to satisfy the test of
nucleus, i.e., the property was acquired with the aid of joint family nucleus. In case of failure to
establish this, a presumption to the contrary will be drawn.
 What is coparcenary? Explain the features of coparcenary and distinguish it from Hindu
joint family

The Concept of <Hindu Coparcenary=

The unique feature of the Hindu society is the Institution of joint family system comprising male
member, his wife, children, his male ascendants, their wives and unmarried daughters. Within
this unit of joint family system, there is another unit known as coparcenary. Coparcenary is a
narrower body than joint Hindu family. It consists of only male members upto three generations
from the last male common ancestor inclusive of him.
Thus it consists of father8s son, son8s son and son8s son8s son. It includes only those members,
who acquire an interest by birth in the joint property called as coparcenary property, they being
the sons, grandsons and great-grandsons of the holder of the joint property. The Supreme Court
in Narendra v. W.T. Commissioner observed that coparcenary is a smaller body which includes
only those male descendants upto three generations who have interest in the coparcenary
property by birth.
Every coparcenary starts with a common ancestor which after his death includes collaterals also.
The extension of coparcenary upto three generations carries special significance for Hindus as
the male descendant8s upto three generations are competent to offer spiritual benefits to their
ancestors.
The females are excluded from coparcenary as it was one of the conditions of coparcenary that
its members are entitled to demand partition which right was not available to the females,
although when a partition took place, some females like mothers and widows were given a share.
For the creation of a coparcenary normally a common ancestor is necessary still the coparcenary
could continue to exist in his absence. It may continue with the collaterals and their descendants
who may be related to the deceased common ancestor by not more than three generations.
The special characteristics of a Mitakshara coparcenary are community of interest and unity of
possession between all members of the coparcenary. Each coparcener is entitled to joint
possession and enjoyment of the common property. The essence of a coparcenary being unity of
ownership, no individual member of the family, while it remains undivided, can predicate of the
joint and undivided property that he has a certain definite share.
Such a corporate body with its heritage is purely a creature of law; it cannot be created by an act
of parties except in so far on adoption a stranger could be admitted to it. Those male persons who
are not by birth or by adoption members of joint family could not, in absence of an enforceable
custom, constitute a coparcenary by agreement.
The Supreme Court has rightly observed that the Mitakshara coparcenary is created by operation
of law not by agreement of the parties. But where some son is taken in adoption, the assimilation
of such adopted son, no doubt, is by the acts of the parties. The following are the essential
characteristics of Mitakshara coparcenary:
(1) The male descendant8s upto three generations from a common ancestor constitute a
coparcenary;
(2) The members can demand partition;
(3) Each of the coparcenary has control over the entire property along with others till partition is
affected;
(4) Their ownership and the right of possession is common;
(5) The coparcenary property could be alienated only in case of necessity and that too with the
consent of other coparceners;
(6) On the death of any of the coparceners, his share devolves on other coparceners by the rule of
survivorship and not by succession.
Thus where a person acquires some property by succession from his father, grandfather and great
grandfather, his son, son8s son and son8s son8s son acquire an interest in that property by birth
and they assume the status of joint owners of such property reserving with them the right to
demand partition. In this way all such descendants who are equipped with the right to demand
partition constitute coparcenary.
There may be small coparcenary within the coparcenary which can be illustrated by the
following diagram:4
In the above diagram, A constitutes a coparcenary along with his four sons, B, C, D, E and five
grandsons namely, B1, S1, S2, M and N two great grandsons namely, B2 and N1. Here B and
N2 and their descendants would not be the members of coparcenary as they are removed from A
beyond three generations. But as soon as A dies B3 and N2 are also included in the coparcenary.
In the above illustration A constitutes a larger coparcenary along with all the descendants, who
are covered within three generations from A. In case E dies leaving behind his own separate
property which is inherited by M and N. For N, the property thus inherited from his father, E,
would be ancestral property and therefore N1, N2 and N3 would acquire an interest by birth in
that property.
Thus we see that N2 and N3 who could not be the members of original larger coparcenary along
with A, would constitute a smaller coparcenary along with N. Thus in the larger coparcenary a
smaller coparcenary also subsists with N1, N2 and N3. It makes the proposition possible that
members in a branch of a male descendant of the coparcenary can constitute a separate
coparcenary which would be comparatively smaller one, having all the characteristics and
conditions of a coparcenary in the proper sense.
Where during the lifetime of a common ancester, one of his male descendant dies, the
coparcenary does not stretch down to one more generation but on the other hand it remains
confined only up to three generations below from the common ancestor. The following diagram
will illustrate the point:
In the above case, A constitutes coparcenary along with В, C, S1 and S2. If В predeceased A,
then too coparcenary will be confined between A, C, S1 and S2. In case С also predeceased A the
coparcenary will still confine between A, S1 and S2. It will not extend below S1 and S2, i.e., it
will include the male descendant8s upto three generations from A, in no case it will extend
beyond that. But as soon A dies, S1, S2, M, N, О and P, all of them become the members of
coparcenary. In the above illustration even if S2 had predeceased A, the coparcenary with the
common ancestor A, would not have extended to О and P.

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: 5A 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 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 5there is community of interest and unity of possession
between all members of the family.6 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 Women8s 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 Woman8s 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.

DIFFERENCE BETWEEN >COPARCENARY? AND >JOINT FAMILY? – EXPLAINED

Difference between 7Coparcenary8 and 7Joint Family8 are described below:

Coparcenary and joint Hindu family are not synonymous to each other. Joint Hindu family
signifies a big institution which consists of a common ancestor, his mother, wife, male
descendants, their wives, widows and unmarried daughters below to any degree. It is based on
the sapinda relationship of the members.
It is a creature of law, not of the act of parties. On the other hand coparcenary is a limited body
which includes only those male members who have the right by birth in the ancestral property
and therefore, they enjoy the right to demand partition in such property. Thus the coparcenary
includes the male descendant8s upto three generations, i.e. sons, son8s son and son8s son8s son. In
Surjit Lai v. Commissioner of Income tax the Supreme Court observed:
5A Hindu coparcenary is much narrower body than the joint family. It includes only those
persons who acquire by birth an interest in the joint or coparcenary property and these are sons,
grandsons and great grandsons of the holder of the joint property for the time being. Since under
the Mitakshara law, the right to joint family property by birth is vested in the male issue only,
females who come in only as heirs to obstructed heritage, cannot be coparceners. Outside the
limits of coparcenary, there is a fringe of persons, males and female, who constitute an undivided
or joint family.
There is no limit to number of persons who can compose it nor to their remoteness from the
common ancestor and to their relationship with one another. The joint Hindu family is thus a
larger body consisting of a group of persons who are united by the time of Sapindaship arising
by birth, marriage or adoption. The fundamental principle of Hindu joint family is Sapindaship.6
The joint family differs from the coparcenary on the following points:4
Firstly, the joint family is unlimited both as to the number of persons and remoteness of their
descent from the common ancestor whereas coparcenary is open to only certain members of joint
Hindu family.
Secondly, a coparcenary is limited to male members of the family who are within the rule of four
degrees inclusive of the common ancestor, whereas there is no such limitation in the case of a
joint family.
Thirdly, since coparcenary is confined to males only, it comes to an end with the death of the
last surviving coparcener, whereas a joint family continues even after his death. It may continue
with females only.
Fourthly, though every coparcenary is joint family or part о I one, the converse is not always
true, i.e., every joint family is not a coparcenary. The Allahabad High Court upholding the above
views observed:
5A Hindu joint family consists of all persons lineally descended from a common ancestor and
includes their wives and unmarried daughters but a Hindu coparcenary is much narrower body
and includes only those persons who acquire by birth an interest in the joint or coparcenary
property those being the sons, grandsons and great grand sons of the holder of the joint property
for the time being.6
Fifthly, a joint Hindu family is bigger institution covering in its fold all the male and female
members descended from a common ancestor. It includes the unmarried daughters also, whereas
a coparcenary is a narrower body. It includes only those persons who acquire by birth an interest
in the joint coparcenary property, being the sons, grandsons and great grandsons of the holder of
the joint property for the time being.
The illegitimate sons of a coparcener are not the members of a coparcenary, although they are
entitled to maintenance. Since they are not coparceners, they do not enjoy the right to demand
partition. But after the death of the father such illegitimate sons can claim partition and will be
entitled to equal share.
In Hardeo Rai v. Shakuntala Devi, the Court observed that, the distinction between Mitakshara
coparcenary property and joint family property, a Mitakshara coparcenary carries a definite
concept; it is body of individuals having been created by law unlike a joint family which can be
constituted by agreement of the parties.
The Court also held that when intention is expressed to partition and share of each of coparceners
becomes clear and once share of a coparcener is determined, it ceases to be coparcenary. Parties
in such an event would not possess property as 5Joint Tenants6 but as tenants in common.

What are the different classes of Property under Hindu Law?

Property under Hindu law may be divided into two classes, viz.,
(1) Joint-family property or coparcenary property; and
(2) Separate property or self-acquired property.

Explain the Incidents of Mithakshara and Dayabhag joint family Property (How joint
family or coparcenary property is constituted?)

1. Joint-family property or Coparcenary property:

Joint-family property or coparcenary property under both Mithakshara and Dayabhag family
signifies the property in which all the coparceners have community of interest and unity of
possession. Such property consists of4
(a) Ancestral property;
(b) Property jointly acquired by the members of the joint family;
(c) Separate property of a member 5thrown into the common stock6;
(d) Property acquired by all or any of the coparcener with the aid of joint family funds.
In Bhagwant P. Sulakhe v. Digamber Gopal Sulakhe, the Supreme Court observed that the
character of any joint family property does not change with the severence of the status of the
joint family and joint family property continues to retain its joint family character so long as the
joint family property is in existence and is not partitioned amongst the co-sharers. By a unilateral
act it is not open to any member of the joint family to convert any joint family property into his
personal property.
(A) Ancestral Property:
Ancestral property is a specie of coparcenary or joint family property. By the term 5ancestral
property6 is meant that property which descends from father, father8s father and great
grandfather. In this property a person8s descendant8s upto three generations, i.e., sons, son8s son,
son8s son8s son acquire an interest by birth.
The following kind of properties will constitute ancestral property with its incidental
characteristics, namely:
(1) Such property will devolve by survivorship and not by succession (prior to 2005 Amendment
Act)
(2) It is a property in which male/ female issues of a coparcener acquire an interest by birth.
In this case a male Hindu inherits the property from his father, father8s father or father8s father8s
father. Thus only the property inherited by a Hindu from anyone of the three immediate paternal
ancestors mentioned above is termed as ancestral property and the only persons who acquire an
interest in it by birth are sons, son8s son and son8s son8s son.
The Privy Council dealing with the source of ancestral property held that it is confined to
property inherited from the three immediate paternal ancestors and the property inherited from a
maternal grandfather is the absolute property of the inheritor in which his son does not acquire
any interest by birth.
Any property inherited by a person from his female relatives, cannot be termed as ancestral
property. Where a property is given in gift to the sister by her brother, after the death of the
sister, her son inherits the same; it would be his separate property not an ancestral property.
Where a question arises as to whether a property obtained by a male Hindu by way of a gift or
will from his father, grandfather or great grandfather would be ancestral or self acquired, the
Supreme Court held that it depends upon the intention of the father or grandfather as expressed
in the deed of gift on will or to be gathered from the terms of the document and surrounding
circumstances.
If the intention of the grandfather was that the father should take the property exclusively, the
property in the hands of the father would be his separate property. If the intention of the
grandfather was that the father should take the property for the benefit of the branch of the
family it would be an ancestral property in the hands of the father, for his sons would get equal
rights with him in the property.
Whatever property, till the day of partition that shall be treated as joint family property. The
property earned by the brothers after partition shall not be regarded as joint family property. In
Commissioner of Income-tax v. P. Chettiar, the Court held that where it has not been indicated in
the deed of gift that the donee will take as a joint family property, that property shall be absolute
property of the donee, in which his sons will not have any right by birth.
In Hindus the ancestral business of joint family has been regarded as a distinct heritable asset.
Where a Hindu dies leaving a business it descends like other heritable property to his heirs. In
the hands of sons, son8s son and great grandsons it will become a joint family business on the
death of male ancestor and the firm which consists of male issues becomes a 5joint family firm6.
The manager of a joint family cannot start a new business so as to bind the share of the other
adult coparceners, unless the business is started or carried on with their express or implied
consent.
The income of joint family business constitutes joint family property.
Similarly any property acquired in exchange of a joint family property would also be held to be
joint family property.
In case ancestral property is absolutely lost to the family, and a member of the family, by his
own exclusive exertions recovers it without any aid from the joint funds, and with the consent
actual or implied, of the others, the recoverer has certain special claims on the property. The
recovery, if not made with the privity of the co-owners, must at least be bona fide, and not in
fraud or by anticipation of the intention of other co-owners.
In Dharam Singh and others v. Sadhu Singh and others, the question was whether the property
was ancestral or separate. In this case properties devolving on father of party due to the death of
issueless brothers and addition to it by the relinquishment of shares by sisters was held not to be
ancestral property vis-a-vis his sons.\

(b) Property jointly acquired by the members of the joint family:

Where property has been acquired by the members of joint Hindu family by their joint labour
whether in business, profession or vocation, with the aid of joint family property, it becomes
joint family or coparcenary property. According to Bombay High Court a property acquired by
the joint labour of the members, even without the aid of joint family funds, is presumed to be
joint family property in absence of any indication of an intention to the contrary.
Where two brothers acquired some property in a joint Hindu family by their joint efforts, in
absence of an intention to the contrary it would be presumed to be joint property and their male
descendants would acquire an interest in that property by birth.
In Bhagwant P. Sulakhe v. Digambar Gopal Sulakhe, the Supreme Court held that the character
of any joint family property does not change with the severance of the status of the joint family
and a joint family property continues to retain its joint family character so long as the joint
family property is in existence and is not partitioned among the co-sharers. By a unilateral act it
is not open to any member of the joint family to convert any joint family property into his
personal property.
In the above case, the remuneration received by two of the members of a joint family who
constituted a firm which was appointed as managing agent of a company, for acting as managing
agent of the company must be held to be the joint family property when the agreement of the
partnership indicated that the two family members became members of the firm which was
appointed the managing agent of the company, representing the joint family and for the benefit
of the joint family.
In Gumam Singh v. Pritam Singh & others. the court further held that if property is acquired by
the fund of joint labour even if it was purchased from income derived from land which was taken
on batai and cultivated jointly there would be presumption of jointness and property would be
treated as joint Hindu family coparcenary property.
(C) Property Thrown Into the Common Stock:
Where any coparcener voluntarily throws his self-acquired property into the joint fund with the
intention of abandoning all separate claims to it, it would be joint property, so as to be divisible
among all the members. Such an intention need not be express, it is sufficient if the owner blends
it as one general account without discriminating between the two, in such a way that a clear
intention to waive his separate rights may be established.
When the head of a joint Mitakshara family kept only one account of ancestral and self acquired
property and sued to amalgamate the funds, it was held that the self-acquired property became
joint property.
Blending is not done by the primary act of blending but it is possible only by deliberate and
intentional acts of the owners of the property. Such an act can be done by express words or by
express conduct of the parties. The act of blending is unilateral. When a member of joint family
mixes his property to a joint family property, he does not do the act of gift nor is it gift. There is
neither any donor nor donee, nor does it attract the provisions of Transfer of Property Act.
In K. Abebul Reddy v. Venkata Narayan the Supreme Court observed that once it is presumed
that the family is joint and it holds joint property it would be a legal presumption that the
property held by an individual member or by all the members is joint family property. If any
member claims his separate right over certain part of joint property the burden of proof would be
on him to prove that it was his separate property.
In Subrammania Reddi v. Venkatasubba Reddi, the husband of daughter had brought in certain
properties which got blended with joint family properties; she had become widow and was
issueless. The main consideration to make a sort of family arrangement and therefore property
had been given to her.
The other family members themselves have treated certain items of properties as separate
properties. The partition effected on that basis, but the family members blending properties of
widow as joint Hindu property. The Supreme Court observed that properties inherited by widow
from his relations on his maternal side, cannot blended with property of joint family property.
Where joint family does have joint family property, the separate property of coparceners does
not convert into joint family property, although it is quite possible that the coparceners regard
their separate property as joint family property. He can permit the other coparceners to treat that
property as their property also.
Where the view is taken that separate or self-acquired property has been thrown into common
stock and one8s separate rights have been abandoned, these facts have to be established
expressly. A presumption to this effect cannot be drawn on the basis of mutual love and affection
of the coparceners.
In Lakireddi v. Lakireddi, the Supreme Court observed that the law relating to blending of
separate property with joint family property is well settled. Property separate or self-acquired of
a member of a joint Hindu family may be impressed with the character of a joint family property
if it is voluntarily thrown by the owner into the common stock with the intention of abandoning
his separate claim thereto, but to establish such abandonment a clear intention to waive separate
rights must be established.
From the mere facts that the other members of the family were allowed to use the property
jointly with himself, or that the income of the separate property was utilised out of generosity to
support persons whom the holder was not bound to support or from the failure to maintain
accounts, abandonment cannot be inferred, for an act of generosity or kindness will not
ordinarily be regarded as an admission of legal obligation.
In Pipari Lai v. Nanak Chand, the Privy Council had laid down that where a son claims that a
business started by his father is a joint family business because he has been actively assisting in
its promotion, there the burden lies on him to establish that the business which was started in
absence of any financial assistance from ancestral property, was intended to be a joint family
business and it was earnestly regarded as such. Once it is established to be a joint family
business, its character will not change despite the change in the attitude of the father later.
Where a member of coparcenary voluntarily gives up his right in any property and mixes it with
joint property, it would be deemed to be joint property. Where he gives away his property in the
common stock it would become a part and parcel of the joint Hindu property and would not be
treated separately.
All the members of joint Hindu family cannot create joint property by throwing their money in
common stock. The property belonging to the coparceners only can create joint family property
by blending them into common stock. Such a right is not available to female members of the
joint family as they are not coparceners.
The doctrine is peculiar to Mitakshara school of Hindu law. When a coparcener throws his
separate property into the common stocks, he makes no gift under the Transfer of Property Act
and therefore it does not amount even to transfer.
(D) Property Acquired With The Aid of Joint Family Funds:
Property acquired with the aid and assistance of joint family property is also joint. Thus,
accumulation of income, i.e., rent etc. of joint family property, property purchased out of such
income, the proceeds of sale or mortgage of such property and property purchased out of such
proceeds are also joint family property.
Where in a joint Hindu family some property is purchased in the name of one of its members, it
will be regarded as a joint family property not his own separate property. If he has acquired any
property without the help of joint family property it could be treated as his separate property.
Where any member of joint family blends his self acquired property into common property of the
family or joint family property, it all becomes joint property.
Where the Karta of joint family purchases any property in his name and does not assert that joint
family property was inadequate to purchase that property, there the burden of proof is on him to
establish that the property was purchased by his own separate property. In absence of such proof,
it would be presumed, that the property was purchased out of joint family property and that
would be regarded as joint family property.
In D. Latchandora v. Chinnabadu, the Court held that where certain property is given to a
member of joint Hindu family in order to meet the expenses of his maintenance and he acquires
some other property out of the income from that property, in that case all the properties thus
acquired by him would become his separate property. But in a case from Madras High Court, it
was held that all the property thus acquired by him would be regarded as joint family property in
the context of his sons.
In Smt. Parbatia Devi v. Mst. Sakuntala Devi, the Patna High Court held that under Hindu law,
when a property stands in the name of a member of a joint family, it is incumbent upon those
asserting that it is joint family property to establish it.
When it is proved or admitted that a family possessed sufficient nucleus with the aid of which
the member might have made the acquisition, the law raises a presumption that it is a joint family
property and the onus is shifted to the individual member to establish that the property was
acquired by him without the aid of the said nucleus.
In Satchidananda Samanta v. Ranjana Kumar Basil, the Court held that a business run by
coparcener on joint property need not always be joint family business. In Dayabhag coparcenary
one coparcener started cinema business on joint family property with the consent of other
coparceners.
The other coparceners did not contribute capital in it. The cinema licence was obtained only in
the name of one coparcener. Evidence on record showed that the grant of cinema licence was not
opposed by other coparcener. It was held that the cinema business was not family business
merely because it was run on joint property.

What is separate or self-acquired property? How it is constituted?

2. Separate or Self-acquired property:
Property which is not joint is called separate or self-acquired property. The word 7separate8
suggests that the family was formerly joint but has now become separate. When a member
separates from joint family, the property which he acquires will be treated as his separate
property vis-a-vis his relations with his brothers, but so far his sons are concerned it would be
regarded as joint family property. The term 5self acquisition6 signifies that the property has
devolved upon him in such a manner as nobody except himself has any interest in it.
Property acquired by a Hindu in any of the following ways is his self-acquired or separate
property even though he be a member of a joint Hindu family:4
(1) Property acquired by a Hindu by his own exertion would be his separate property as it is not
the result of any joint labour with the other members of the joint family, provided it is obtained
without detriment to joint family property. Where a person has acquired any property by way of
adverse possession after remaining in its possession adversely for a period of twelve years it
would be treated as his self-acquired property not a joint property.
Where a member of joint family carries on a business of medical practitioner in Ayurvedic
medicines and thereby earnes heavy sum of money and gives loan on mortgage, thus
accumulating further income, all the earnings and the property thus acquired by him would be his
separate property.
Recently in Maklian Singh v. Kulwant Singh, Supreme Court observed that if a male member of
the Joint Hindu Family purchased the property by his own incomes like salary income, such
property is his self acquired property. Such property inherit his heir by succession. It could not
be said to be the property of Joint Hindu Family.
(2) Property inherited by a Hindu from any person other than his father, grandfather or great
grandfather would be his separate property. Where a person earns money from the practice of a
hereditary profession like the hereditary priest, it will not be regarded as his joint family property
but on the other hand his separate property.
In Madan Lal Phul Chand Jain v. State of Maharashtra, the Court held that a Hindu can own
separate property besides having a share in ancestral property. Where any member of joint
family inherited land left by his uncle that property came to him as a separate property and he
had an absolute and unfettered right to dispose of that property in the manner he liked. Thus
property inherited by a person from colleterals such as brother, uncle etc. cannot be said to be
ancestral property and his son cannot claim a share therein as if it were ancestral property. On the
death of a brother issueless, the property inherited by a person would be his separate property.
(3) Any property obtained by a Hindu as his share of partition of a joint Hindu family, provided
he has no male issue, shall be treated his separate property. Where a Hindu makes some
acquisitions after partition with the help of his share in joint family property, that property shall
be regarded as his separate property.
(4) Any property devolving on a sole surviving coparcener provided there is no widow in
existence who has power to adopt or has a child in her womb, will be regarded as his separate
property.
(5) Property obtained by a Hindu by a gift or will unless made by his father, father8s father or
father8s father8s father for the benefit of the family and not exclusively for himself, would be his
separate property.
(6) Property obtained by gift of ancestral property made by the father through affection, will be
his separate property.
(7) Property obtained by a Hindu by grant from the Government shall be regarded as separate
property.
(8) Joint family property lost to the joint family and subsequently recovered by a member thereof
without the assistance of joint funds from a stranger holding adversely to the family property
shall be regarded as his separate property.
(9) Gains of Learning:
Any income earned by a member of joint family substantially by means of his education or
specialisation, expertise or special intelligence would be regarded as his separate property.
Where a member of joint family acquires some knowledge or specialisation after getting the
education at the cost of joint family fund and later on earns a considerable sum, whether that sum
will be treated as his separate property or joint family property, became a controversial issue.
In order to bring the controversy to an end the Hindu Gains of Learning Act, 1930 was passed.
The Act provided that no gams of learning shall be held not to be the exclusive and separate
property of the acquirer merely by reasons of learning having been imparted to him by any
member of his family or with the aid of the joint funds of the family or with the aid of the funds
of any member.
Section 3 of the Act provides:
5Notwithstanding any custom, rule or interpretation of the Hindu law, no gains of learning shall
be held not to be exclusive and separate property of the member of the joint family who acquires
them merely by reason of (a) his learning having been in whole or in part, imparted to him by
any member living or deceased, of his family or with the aid of joint funds of his family or with
the aid of joint fund of any member thereof, or (b) himself or his family having while he was
acquiring such learning been maintained or supported, wholly or in part, by the joint funds of his
family or by the funds of any member thereof.
5Learning means education whether elementary, technical, specific, special or general and
training of every kind which is usually intended to enable a person to pursue any trade, industry,
profession or a vocation in life64Section 2(c).
5Gains of learning means all acquisitions of property made substantially by means of learning,
whether before or after the commencement of the Act and whether ordinary or extra-ordinary
result of such learning.64Section 5(d).
Salary and Remunerations:
Where a member of joint family makes acquisition with the aid of any part of joint family
property, it cannot be his separate earning nor can it be said to be his separate property simply on
account of the fact that such acquisition was made by him by applying his own wisdom or skill.
In Palanippa v. Commissioner of Income-tax.
The Supreme Court observed that where no part of the family funds had been spent to enable the
Karta to earn remuneration of managing director and the family funds had been invested to
obtain dividends and other advantages of being shareholders, the salary, commission and sitting
fees of Karta as managing director shall remain his personal property.
In Dhanwantary v. Commissioner of Income Tax, the Court held that the salary earned by a
coparcener as partner constituted joint family property. Where the coparceners invested joint
family assests in partnership and it was agreed that the profits earned in partnership were to be
taken as personal salary of each coparcener, the salary which the manager earned on account of
his personal skill and labour was held to be as a part of joint family property.
On the other hand in Commissioner of Income-tax v. D.C. Shah, the Supreme Court held that the
salary given to a coparcener as partner on account of his special skill and experience constituted
his self acquired property, even though the family has contributed a large parts of its capital to
the firm.
Where the security is given out of joint family property for the appointment of Karta of joint
family on the post of a manager in an industry, the court held that the salary and remuneration
earned by the Karta will still be regarded his separate property of Karta.
In Bhagwantji Sulakhe v. Digambar Gopal Sulakhe, the Court observed: Where a coparcener has
been appointed as a managing director of a company the remuneration earned by the coparcener
will be regarded his separate property irrespective of the fact that a few shares of the company
were purchased out of joint family property to enable him to become the managing director.
Where the premium of the insurance policy of a coparcener is deposited out of joint family fund,
the benefit earned by him would be his separate property not the joint family property.
In Sidrammappa v. Babajappa, the Mysore High Court observed that if the father has taken an
insurance policy in the name of the son and paid the premiums thereof out of love and affection,
then the benefits of the policy will belong to the son and constitute his separate property.
Similar view was taken by the Andhra Pradesh High Court in Narayanlal v. Controller of Estate
duty. The Supreme Court in Prabhavati v. Sarangdhar observed: 5There is no proposition of law
by which the insurance policies must be regarded as the separate property of the coparceners on
whose lives the insurance is effected by the coparcenary.6 If the insurance policy were taken
with any detriment to the joint family funds, then anything obtained thereby would belong to the
joint family.
In Chandra Kant Mani Lai Shah v. Income Tax Commissioner, the Supreme Court laid down a
new proposition by saying that a partnership firm can be constituted between the Karta and
undivided member of Hindu undivided family. It is not necessary that such undivided member
should contribute cash assets to become partner in the firm. When an individual in place of cash
asset contributes his skill and labour in consideration of a share in the profits of the firm he can
become a partner in the firm.
In such cases when a coparcener contributes his skill and labour while entering into partnership
with the Karta of Hindu undivided family, it cannot be said that he has not made contribution of
any separate asset to meet the requirement of a valid partnership. The profit thus earned by that
coparcener would not constitute the property of the joint family but would be the separate
property of the individual coparcener concerned.
In K.S. Subbiah Pillai v. Commissioner of Income Tax, the remuneration and commission was
received by the Karta of the family. The tribunal had held that the remuneration and commission
received by the Karta of the joint Hindu family where earned by him on account of his personal
qualifications and exertions and not on account of the investment of the family funds in the
company, therefore it could not be treated as the income of H.U.F. In this case the Supreme
Court also observed that the decision given by tribunal is correct.

Difference between a partnership and joint Hindu family business

1. Regulating law:
A partnership is governed by the provisions of the Indian Partnership Act, 1932. A joint
Hindu family business is governed by the principles of Hindu law.
2. Mode of creation:
A partnership arises out of a contract, whereas a joint Hindu family business arises by the
operation of law and is not the result of a contract.
3. Admission of new members:
In a partnership no new partner is admitted without the consent of all the partners, while in the
case of a joint Hindu family firm a new member is admitted just by birth.
4. The position of females:
In a partnership women can be full-fledged partners, while in a joint Hindu family business
membership is restricted to male members only. After the passage of the Hindu Succession Act,
1956, females get only co-sharer8s interest at the death of a coparcener and they do not become
coparceners themselves.
5. Number of members:
In partnership the maximum limit of partners is 10 for banking business and 20 for any other
business but there is no such maximum limit of members in the case of joint Hindu family
business.
6. Authority of members:
In partnership each partner has an implied authority to bind his co-partners by act done in the
ordinary course of the business, there being mutual agency between various partners.
In a joint family business all the powers are vested in the 7Karta8 and he is the only
representative of the family who can contract debts or bind his coparceners by acts done in the
ordinary course of business, there being no mutual agency between various coparceners.
But a coparcener other than the 7Karta8 of the family may be authorised expressly or by
implication to contract debts on behalf of the firm (Lai Chand vs. Ghanayalal).
7. Liability of members:
In partnership, the liability of the partners is joint and several as well as unlimited. In other
words, each partner is personally and jointly liable to an unlimited extent and if partnership
liabilities cannot be fully discharged out of the partnership property each partner8s separate
personal property is liable for the debts of the firm.
In a joint Hindu family business only the 7Karta8 is personally liable to an unlimited extent, i.e.,
his self-acquired or other separate property besides his share in the joint family property is liable,
for debts contracted on behalf of the family business.
Other coparceners8 liability is limited to the extent of their interest in the joint family property
and they do not incur any personal liability.
But an adult coparcener can be made personally liable if he is also, expressly or impliedly, a
party to the contract or if he has subsequently ratified and accepted the transaction out of which
the obligation of the creditor arose (Lai Chand vs. Ghanayalal).
8. Right of members to share in profits:
In a partnership each partner is entitled to claim his separate share of profits but a member of a
joint Hindu family business has no such right. His only remedy lies in a suit for partition.
9. Effect of death of a member:
A partnership, subject to contract between the partners, is dissolved on the death of a partner, but
a joint Hindu family firm is not dissolved on the death of a coparcener (Baij Nath vs. Ram
Gopal).

Who is a coparcener? Explain the rights of coparceners

WHAT ARE THE RIGHTS AND DUTIES OF COPARCENERS?

The following are the fourteen main rights of a coparcener:
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 Shivagunga (1893 9 M.I.A.
539), 5there is community of interest and unity of possession between all the members of the
family6.
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 enjoyment 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 injunction, restrain such coparceners from obstructing him in the
enjoyment of the property.
In one case, A and В were members of a joint family. A prevented В from using a door which
was the only means of access to the rooms which were in B8s occupation. It was held that, in the
circumstances, the Court could, by injunction, restrain A from disturbing В in the use of the
door. (Anani v. Gopal, 1895, 19 Bom. 269)
In another case, A and В were members of a joint family, which owned a shop in Poona. A
prevented В from entering the shop, inspecting the account books, and taking part in the general
management of the shop. В sued A for an injunction, restraining A from excluding В from the
joint possession and management of the shop, and the Bombay High Court held that В was
entitled to succeed. (Ganpat v. Annaji, 1899 23 Bom. 144)
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 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 (Appaji v. Ramchandra, 16 Bom. 29), 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 personally, 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 alienation 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.
12. Right of survivorship:
All the coparceners of a joint Hindu family have a right of survivorship 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.

Who is a Karta? Explain his position, powers, duties and functions

Karta (Manager) in Hindu Joint Family

In Hindu joint family, the senior most male ascendant is the head of the family and is called
The Karta. Karta represents the family and acts on its behalf. In a family consisting of the father
and his children, father is the Karta when he dies his eldest son becomes the Karta. Thus in a
joint family consisting of brothers the eldest brother is the Karta. It is open to the senior member
to give up his right of Management. Then one junior to him can become the Karta. Karta is the
head of the joint family acts on behalf of the member of the joint family.

Who is a Karta?
Karta is the head of the Hindu joint family. he is also known as 7karata8. he occupies a
unique position in the management of the joint family. the father or the senior most male
member act as 7karta8 .even a junior most member can be a karta , if the other male members
(coparceners) agree to it. A minor male (coparceners) may also act as a karta through his legal
guardian till the become a major
Can a female be a Karta?
A woman cannot be a coparcener she cannot become the manager /Karta of the Hindu joint
family. the relevant leading case on this point is. Gangoli Rao vs.Chinnappa AIR 1983 (K222)---
In this Case A, a father has a wife and two minor sons .a died leaving behind his undivided
interest in the joint family property .the widow alienated the property .the alienation was
challenged by the sons on the ground that a woman cannot be a Karta and hence cannot alienate
the property. The widow justified the alienation, contending that it was made by necessity.it was
held that the alienation by the widow /mother in such situation is valid .but on appeal ,the
supreme court admitted the contention of the sons and held that woman cannot be a coparcener
and Karta, following the decision in commissioner I.T vs .S.M .Mills, AIR 1966SC24.

General Powers of a Karta of Hindu Joint Family

General Powers of a Karta of Hindu Joint Family are as follows:
The powers of Karta in joint family property is not larger than a coparcener in the family nor has
the Karta larger right to enjoy tine same than any other coparcener. He does not get any
remuneration for the services he renders in family.
The followings are the general powers of Karta of a joint Hindu family:4
(1) Power over income and expenditure;
(2) Power to manage joint family business;
(3) Power to contract debt for family purposes;
(4) Power to enter into contracts;
(5) Power to refer to arbitration;
(6) Power to enter into compromise;
(7) Power to give discharge;
(8) Power to acknowledge debts;
(9) Power to represent in suits;
(10) Power of alienation of joint family property.
(1) Power over income and expenditure:
The Karta exercises extensive control over the income and expenditure of the joint family. Since
his position is not like the trustee or agent, he is not bound to economise or save like a trustee or
agent provided he spends the income of the family for the benefit of the members of the family,
e.g., for maintenance, education, marriage, sraddha and other religious ceremonies of the
coparceners and of the members of their respective families.
(2) Power to manage joint family business:
The Karta has the power to manage the joint family business. In this respect he can take all such
steps which are just and necessary for the promotion of the business.
(3) Power to contract debt for family purposes:
The Karta can enter into contracts incurring debts for family purposes and family business which
will bind the other coparceners to the extent only of their interest in the joint family property.
Such debt contracts could bind the adult coparceners personally also if they were parties to the
contract expressly or impliedly or they subsequently ratify the contract and in case of minors if
they ratify on attaining majority.
In case of a loan advanced to the manager, if the lender makes due inquiry into the necessity for
the loan and lends the money born fide, the debt is binding on the interests of all the members
although the reasonably credited necessity did not in fact exist.
(4) Power to Enter Into Contract:
The Karta has the power of making contracts, giving receipts, entering into compromises,
discharging contracts ordinarily incidental to the business of the family.
(5) Power to Refer to Arbitration:
The Karta may refer to arbitration any matter involving the interest of joint Hindu family and the
other members of the family including minors are bound by the reference and consequently by
the award made upon it.
(6) Power to Enter Into Compromise:
The Karta can enter into a compromise in any matter relating to joint family property. He,
however, has no power to give up a debt due to joint family and give up a valuable item without
any return or consideration, though he has a right to settle accounts with the debtors and to make
a reasonable reduction either towards interest or towards principal in the interest of the family.
(7) Power to Give Discharge:
The Karta has power to give a valid discharge to the debt due to joint family. Where one of the
members of joint family is a minor, he cannot claim the benefit of Section 7 of the Limitation
Act.
(8) Power to Acknowledge Debts:
The Karta has power to acknowledge a debt or make a part payment of it, so as to extend the
period of limitation. But he cannot execute a fresh promissory note or a bond so as to revive a
time barred debt.
(9) Power to Represent in Suits:
The Karta may represent the joint family in the event of a suit by or against the family, so that
other members are not the necessary parties to the same. The Karta himself be sued or he can
institute a suit with respect to any property or other matters of the joint family. Whenever a
decree is passed against him, that would bind all other members of the family, if, as regards
minor members, he acted in the litigation in their interest, and in case of major members, he
acted with their consent.
The Karta represents the interests of the joint family property also. In Fathiunnisa Begum v.
Tamirasa Raja Gopala Charyulu, the Court observed that a Hindu widow inheriting her
husband8s share under Hindu Women8s Right to Property Act, 1937, does not by itself disrupt
the joint family status.
After such inheritance she continues to be a member of the joint family and the Karta of joint
family can represent her in all suits. The enlargement of her limited estate into full estate by
virtue of Section 14 of the Hindu Succession Act does not bring about a change in the Karta8s
power to represent joint family including her.
(10) Power of Alienation:
The Karta can alienate for value the joint family property so as to bind the interests of the other
coparceners provided it is made:
(a) With the consent of all the existing coparceners; they being all adults;
(b) For legal necessity; or
(c) For the benefit to the estate.
Thus where the Karta alienates the joint family property for legal necessity or for the benefit to
the estate, the consent of the other coparceners to this effect is not necessary. He, in such cases
can proceed to alienate the joint family properly even without the consent of other coparceners.
He does not enjoy the absolute power to alienate joint family property. Some strict restrictions
have been provided over his powers in this respect. The expression 5for pious purposes6 has
been so often used in different contexts in Hindu law. The powers of Karta cannot extend in this
context.
In G. Shiva Kumari v. Indian Overseas Bank, the Andhra Pradesh High Court held that the Karta
of joint family can burden the estate by mortgaging the property for the benefit of the estate.
However, in doing so, he must act as a prudent owner with the knowledge available to him at the
time of transaction. A transaction by the manager which is neither risky nor speculative but
calculated to confer a positive advantage on the family, can be said to benefit the estate.
The law also sanctions gifts to strangers by a manager of a joint family of small extent for pious
purposes. But a gift to a stranger, however, much the donor was beholden to him, cannot be
sustained on the ground that it was made out of charity. The scope of the power cannot be
extended on the basis of wide interpretation given to the words 5pious purposes6 in the Hindu
law in a different context.
The father as a Karta of joint family can dispose of or mortgage the joint family property which
includes the shares of his sons. Such sale or mortgage can be effected by him for the payment of
debts which he had incurred for his personal gains. The alienations in such cases would be
binding on his sons provided the debt was incurred prior to alienation and it was not for any
immoral purposes.
In Pavitri Devi v. Darbari Singh, the Court held that the Karta has got absolute power to alienate
his undivided interest in the joint family. The transferee in such cases acquires the right to get
that part of the property partitioned and to claim possession over it to the same extent and in the
same manner as it was available to the Karta.
In Radha Krishna Das v. Kaluram, the Supreme Court held that 5where an alienation by way of
sale of the family property made by a Hindu father is challenged by his sons on the ground of
want of legal necessity then it is now well settled that what the alienee is required to establish is
legal necessity for the transaction and that it is not necessary for him to show that every bit of the
consideration which he advanced was actually applied for meeting family necessity. The reason
is that the alienee can rarely have the means of controlling and directing the actual application of
the money paid or advanced by him unless he enter into the management himself.6
Legal necessity does not mean actual compulsion; it means pressure upon the estate which in law
may be regarded as serious and sufficient. The onus of proving legal necessity may be
discharged by the alienee by proof of actual necessity or by proof that he made proper and bona
fide enquiries about the existence of the necessity and that he did all that was reasonable to
satisfy himself as to the existence of the necessity.
Where the father in the capacity of Karta alienates the property on the ground of legal necessity,
the burden of its proof is on the alienee. Where legal necessity is not proved, the alienation
would be binding on the share of the father in joint family property. Similarly where the father
gave away the ancestral property in gift to his daughter, the Madras High Court held that the gift
was void not voidable. Where a coparcener surrenders his share in the coparcenary property in
favour of his wife, it was held to be invalid.
In Sunil Kumar v. Ram Prasad, the Supreme Court held that where the father as a Karta
proceeded to sell away joint family property on account of legal necessity, no coparcener could
restrain him through a suit of injunction from doing it. If the coparcener considers the sale to be
bad, he could challenge its validity after the sale is effected.
Where the sale considerations were spent by Karta who was agriculturist, on purchase of
agricultural implements and also on marriage of granddaughter it was held that the sale was for
legal necessity therefore the court refused to set aside the sale merely on the ground that
consideration was meagre. Similarly in Sunder Das and others v. Gajananrao & others, ancestral
property was alienated by the Karta on ground of legal necessity.
It was mentioned in sale-deed as to sale being for legal and family necessity. Father was serving
as upper division clerk in court. He was not shown to have been addicted to immoral conduct.
Sale was thus treated to have been taken for family necessity. Thus father was held competent to
have disposed of share of minor sons. Hence the minor sons were bound by the sale made by the
father for family necessity.
In Naresh and others v. Babulal and others, the High Court held that Karta of the family cannot
be restrained from alienating joint family property.

Duties and Liabilities of a Karta

The following are the duties and liabilities of Karta in a joint family:4
(1) Duty to render account;
(2) Duty to realise debts due to family;
(3) Duty to spend reasonably;
(4) Duty not to start a new business without the consent of the coparceners;
(5) Duty not to alienate coparcenary property without 7legal necessity8 or 7benefit to the estate8.
(1) Duty to Render Accounts:
It is the prime duty of Karta to render accounts to the other coparceners regarding the income
from joint family property and the expenditures thereon. But he is not under any obligation to
account for his past dealings with the family property unless there is clear proof of
misappropriation or fraudulent use of the family funds or estate by him. He is liable to account at
the time of partition only and then only for the family property as it exists at the time. But this
does not mean that the parties are bound to accept the statement of the Karta as to what the
property consisted of.
(2) Duty to Realise Debt Due To the Family:
It is an important duty of the Karta to make sincere efforts to realise the debt due to family. But
he cannot give up any debt, although he has got the full power to settle accounts with debtors and
to make a reasonable reduction either towards interest or towards principal in the interest of the
family.
(3) Duty to Spend Reasonably:
It is the duty of the Karta to spend the joint family funds only for the purposes of the family. It is
not his duty to save by resorting to economy unnecessarily. He must spend reasonably. If he
spends unreasonably and it is not approved by other members of the family, the remedy would
be to demand partition.
(4) Duty Not To Start New Business without the Consent of Other Coparceners:
The Karta must obtain the consent of other coparceners before starting a new business, as he
cannot impose the risk of a new business upon the minor as well as adult members of joint
family.
In P.S. Sairam v. P.S. Rama Rao Pisey, Karta of the family uses joint family property for his
separate business. He has started business by taking loan from market, in the premises of Joint-
Hindu property. This property was not used only by the Karta, but also by junior members of
Joint family. In this case, the Supreme Court observed that business carried on by Karta cannot
be treated to be the joint family business and that properties acquired out of income of said
business, have got to be treated as self acquisitions of Karta.
(5) Duty not to alienate coparcenary property except for legal necessity and benefit to the
estate:
It is the duty of the Karta to obtain the consent of adult coparceners before alienating the joint
family property. But if he alienates the property for legal necessity or for benefit to estate, he
need not obtain the consent of other coparceners. Whether the transaction is sought to be justified
on the ground of legal necessity or benefit to the estate, the real question to be considered is
whether it is fair and proper transaction, such as, a prudent owner would enter into, with the
knowledge available to him at the time.

Powers of Karta to alienate joint Hindu family property

The Hindu Joint Family is the ordinary state of the Hindu society. A Hindu Joint Family
comprises all the individuals from a typical male progenitor together with their moms, spouses or
widows and unmarried girls. Joint family is an establishment where various individuals from the
family live respectively, having various rights over the property and playing out their privileges
and commitments towards one another. A joint family ought to be going by an individual from
inside the family who is part to tie all the relatives together and able to speak to it in the law
concerning all the issues. His choices regarding the family and property can be considered to be
for the wellbeing of the family.
The head of the family or the Karta is a person who regulates the proper functioning of a joint
family. Unlike other family members, he enjoys a special position. The Hindu Joint Families8
senior male member is normally the family8s head or Karta. Karta8s status is sui generis
(unique). It is a specific position and the relationship between him and other members of the
family is not like any other relationship. He is the custodian of his family8s interests and his acts
are guided by the presumption that the general family relations are promoted.

A Hindu coparcenary is a much smaller body than the joint family. It incorporates just those
people who procure by birth an enthusiasm for the joint or coparcenary property. The
embodiment of coparcenary under Mitakshara law is the solidarity of proprietorship. The
intrigue is of fluctuating nature, equipped for being broadened by passings in family and subject
to be decreased by births in the family. It is just on the parcel that he gets qualified for a clear
offer. Joint family property is the making of Hindu Law, and the individuals who own it are
called coparceners.

What you mean by alienation of joint-family Property? Who can alienate coparcenary
property?

Alienation of Coparcenary Property

Alienation refers to the transfer of property. For eg: sales, gifts, mortgages, etc. Property
alienations have an added importance in Hindu law, as, usually neither the Karta (the manager of
a joint family and the properties of such joint family. He also looks after the regular expenses of
the family and also protects the joint family property) nor any other Copercaner has the absolute
full power of alienation over the joint family property or over his interest in such property.
However, under the Dayabhaga school (in this school of thought the male descendants do not
hold any right over the ancestral property after the ancestor8s demise), a Coparcener has the
alienation right over his right in the alienation property.
 Alienation involves wealth transfer, such as donations, purchases, and mortgages.
Alienations are of added value in Hindu law, because usually neither the Karta nor any other co-
parent has complete alienation control over the common family property or his interest in the
common family property, while a co-parent has the right of alienation under the Dayabhaga
School over his interest in the common family property.

The alienations related to coparcenary property under the Hindu law are governed by the Hindu
Succession Act, 1956 and the Transfer of Property Act, 1882.

Who may alienate?

The following persons are capable of alienating/transferring a coparcenary property and thus
possess the power in this regard:

1. When other members are Minors- Karta can alienate if there is legal Necessity or for the
benefit of estate
2. When other members are Adult- Karta can alienate with the consent of all the coparcener
existing for any purpose.
3. If the Karta is Father- additional Power - a) to discharge antecedent debt

b) as a gift

c) as a gift for Pious Purpose

Karta?s power of alienation

For legal necessity and benefit to the estate, Karta was allowed to alienate the traditional
family property. Where the other coparceners are minors, he may alienate joint immovable
property to attach not only his interest but also that of the other minor coparceners, given the
common family8s needs warrant the same.
Therefore, the alienee must prove one of the following two things:
1. The transaction was justified by the legal necessity for the benefit of the estate; and
 2. He made fair or bona fide inquiries as to the nature of need and convinced himself that
the manager was acting to the benefit of the estate.

Usually, an individual Coparcener, including the Karta, lacks the capability to dispose of the
joint family property without obtaining the consent of all other Coparceners. However, according
to the Dharmashastra, any family member is empowered to alienate the joint family property.

The Mitakshara school is explicit on this matter. According to Vijnaneshwara, under 3

exceptional circumstances, the alienation of the joint family property by an individual is
possible:

1. Apatkale, i.e. during distress;

2. Kutumbarthe, i.e. for the sake of the family;
3. Dharmarthe, i.e. for disposing of indispensable duties.

However, with the advent of time, Vijnaneshwara8s formulation has undergone modification in
two aspects. Firstly, the alienation power is not exercisable by any other family member, except
the Karta.

Secondly, the joint family property can be alienated for the following 3 purposes:

1. Legal necessity;
2. Benefitting the estate;
3. Acts involving indispensable duty.

Further discussions on these grounds of alienation shall be discussed afterward.

Coparceners power

Neither the Mitakshara nor the Smritikars conferred any sort of power of alienation to the
Coparceners over their undivided interest in the joint family property.
However, the textual authority is very limited in this regard. The law relating to Coparcener8s
alienation power is a child of judicial legislation. The first inroad emerged when it was held that
a personal money decree against a Coparcener could be executed against his undivided interest in
the joint family property. Some courts have extended this principle for including voluntary
alienations also.

Thus the Coparceners8 alienation power can be categorized under the following heads:

Involuntary Alienation 3 This refers to the alienation of the undivided interest in the execution
suits. The Hindu sages greatly emphasized upon the payment of the debts. The courts seized this
Hindu legal principle and started its execution on personal money decrees against the joint
family interest of the judgment-debtor Coparcener.

In Deen Dayal vs. Jagdeep (1876), the Privy Council settled the law for all the schools of Hindu
Law, by holding the purchaser of undivided interest at an execution sale during the lifetime of
his separate debt acquires his interest in such property with the power of assessing it and
recovering it through the partition.

This rule is, however, as held in Shamughan vs. Ragaswami, limited to the non-execution of the
decree, against the Coparceners interest, succeeding his demise.

Voluntary alienation 3 After accepting the fact that the undivided interest of a Coparcener is
attachable and saleable during the execution of a money decree against him, the next step
involved, extending the principle to voluntary alienations as well.

Sole surviving coparcener8s power

When all the Coparceners die except one, such a coparcener is regarded as the sole surviving
Coparcener. When the joint family property passes into the hands of such Coparcener, it turns
into separate property, provided that such Coparcener is sonless.
Now based on various judicial decisions there are 3 views in relation to the power of the sole
surviving Coparcener in alienating a property of the Hindu joint family:

1. A sole surviving Coparcener is fully entitled to alienate the joint family property.
However, if at the time of such alienation, another Coparcener is present in the womb,
then such coparcener can challenge the alienation or ratify it after attaining the age of
majority.
2. The sole surviving Coparcener8s power of alienation is unaffected by any subsequent
adoption of a son by the widow of another Coparcener. However, the Mysore High
Court holds a contrary view in this regard.
3. The sole surviving Coparcener cannot alienate the interest of any female where such
interest has been vested on her by virtue of Section 6 of the Hindu Succession Act,
1956.

Grounds of alienation

According to Vijnaneshwara, a joint family property can be alienated for 3 reasons:

 Apatkale: It refers to a situation where the whole family or one of its members meets
with an emergency, in regards to their property. The nature of this transaction is meant
for combating the danger, or an attempt in avoiding the calamity for which money is
needed. When it refers to the property, it indicates the transfer as being necessary for
its protection, or conservation, and for which immediate action is to be taken.

This is not a mere profitable transaction, but a transfer which if not affected causes loss to the
family, to this property, or any other property owned by the family.

 Kutumbarthe: This means 5for the benefit of the Kutumb6. Kutumb refers to family
members. Therefore, this involves the alienation of a property for the sake of
subsistence of a family member or relative. For eg: food, clothing, housing, education.
Medical expenses, etc.
  Dharmarthe: For performing indispensable and pious duties. Usually for religious and
charitable purposes.

However, with time Vijnaneshwara8s formulation has gone through a rapid transformation and
modified pivotally into 2 aspects:

1. The power of alienation cannot be exercised by anyone but the Karta of the joint
family; and
2. The joint family can be alienated solely for the following three purposes:

1. Legal necessity

This term 5legal necessity6 lacks any precise definition due to the impossibility to provide any
such definition as the cases of legal necessity can be numerous and varying. Widely speaking,
legal necessity will include all those things which are to be deemed necessary for the family
members. Such situations may include famine, epidemic, earthquake, floods, etc. According to
Mayne, it is now established that necessity need not be comprehended in the sense of what is
absolutely indispensable but what, according to the notions of a Hindu family, would be regarded
as proper and reasonable.

The word 5legal necessity6 must be read in a more general connotation. It is to be understood in
due consideration of the circumstances of modern life. If it is shown that the needs of the family
were for the thing or that article, and if the property was alienated to satisfy that need, it would
be enough. It is now well-established that the word 5legal requirement6 should not be interpreted
in the context of what is completely indispensable, but what would be regarded as proper and fair
according to the notions of a Hindu family.

Broadly speaking, all those things that are deemed necessary for family members will include
legal necessity. Under Vijnaneshwara, the term 7Apatkale8 may indicate that joint family
property can only be alienated in times of distress such as famine, epidemic, etc., and otherwise.
But it has been recognized under modern law that necessity may extend beyond this. It applies to
a situation in which the family as a whole or one of its members is facing an emergency
concerning their property.

In Devulapalli Kameswara Sastri vs. Polavarapu Veeracharlu, the Court held that need should
not be understood in the sense of what is completely indispensable but what would be regarded
as necessary and rational according to the notions of the common Hindu family. Legal necessity,
therefore, does not mean actual compulsion, it means pressure on the property that can be
considered serious and sufficient in law.

The following have been held to be legal necessities:

(i) Payment of Government revenue and debts payable out of the family property;

(ii) Maintenance of coparceners and their family members;

(iii) Marriage expenses of coparceners and daughters of the coparceners;

(iv) Performance of Shraddha, funeral and other religious ceremonies of the members of the joint
family;

(v) Expenses of necessary litigation;

(vi) Costs of defending the head of the family or any other member of the joint family against
serious criminal charge;

(vii) Payment of debts incurred for the family business;

(viii) Expenses for augmenting the means of livelihood of the members of the family;

(ix) Cost of building a residential house for the family and expenses for repairing the family
house;
(x) Sale of family property with the object of conveniently adjusting the shares of the rest of the
family;

(xi) Sale of family property for migrating to different places for better living.

Essentials for a valid transaction under legal necessity are:

Purpose exists, i.e. a situation with respect to family members or their property which requires
money.

Such a requirement is lawful, i.e. it must not be for an immoral, illegal purpose.

The family does not have monetary or alternative resources for dealing with the necessity, and

The course of action taken by the Karta is such that a normally prudent person will take with
respect to his property.

However, while such alienation, the consideration for the sale of coparcenary property must not
be inadequate.

2. The Benefit of Estate

In the absence of a legal necessity, where the deprivation of the common property is in the
interest of the family8s assets, it is justified. The Privy Council had put forth a detailed
explanation of the causes of land gain in Palaniappa vs. Devsikmony. In this case, the Privy
Council noted that the term 7benefit of the estate8 as used in the decisions relating to
circumstances requiring an alienation can not be precisely specified. It stipulated, however, that
5the preservation6 of the estate from destruction, the defence against the hostile litigation that
affects it, the protection of it or its portion from damage or flood degradation will be the
advantages. The legal necessity in the broadest sense requires 7benefit to the estate8.
To be viewed as a gain to the family, the transaction does not need to have a protective character
to be binding on the family. In such a case, the Court must be satisfied with the information
before it that, at the time it was entered into, it was, in fact, such as granted or was reasonably
intended to give the family benefit. Where there are adult members in a joint family, it is
mandated that both the Karta and the adult members make important decisions relating to the
benefit of the estate.

7Estate8 implies landed property. Since the term here is used in connection with shared family
property, 7estate8 would mean shared family landed property. The word 7benefit of the estate8 to
begin with protected cases of a strictly defensive nature, such as protecting it from threatened
danger or destruction, but eventually also included alienations that an ordinary sensible man
might find suitable for the collection of circumstances in consideration.

In the case of Balmukund vs. Kamlawati & Ors, the Supreme Court later made its conclusion as
to what constitutes a benefit that it does not need to be defensive for the transaction to be
considered as for the good of the family. Instead, the Court must be pleased in any case with the
evidence before it, whether it was in turn given or was intended to grant benefit on the estate.

The examples presented below will indicate the cases in which the Courts held the alienation to
be for the good of the estate: In Hari Singh vs. Umrao Singh, the Court held that where land that
yielded no income was sold and land that yielded income was bought, the sale was held to be for
the benefit. In Gollamudi vs. Indian Overseas Bank, it was considered to be for-profit when an
alienation was made to carry out renovations in the hotel which was a family business.

Pivotally speaking, the benefit of an estate refers to anything that is done which will benefit the
joint family property.

The term 7benefit of the estate8 in the inception covered purely defensive cases, such as
protecting it from a threatened danger or destruction, but gradually it also began including
alienations that an ordinarily prudent man would view as appropriate under certain situations.
 3. Indispensable duties

The third field in which the Karta8s power to alienate traditional family property lies is where it
is invaluable. The word 5indispensable duties,6 means the execution of moral, holy, or charitable
acts. Refers to annual shraddhas, upanayana ritual, the marriage of family-born co-parent and
girls and all other religious ceremonies. Apart from these invaluable rituals, donations under
acceptable limits may be made for religious reasons, for example, for a family deity or a deity in
a public temple, a specific portion of the property may be alienated to.

In the case of Gangi Reddy vs. Tammi Reddi, the Court held that the donation of a portion of a
religious charity8s family intent can be legitimate by the Karta without the approval of all the
coparceners if the allocated property is limited compared with the family8s overall assets.

Father?s alienation power

Before the courts used to hold conflicting views regarding the father8s power of alienation over
his separate immovable properties. This is despite their unanimity the father was fully
empowered to dispose of his separate movable property.

The cause of this conflict was a text in Mitakshara, according to which the father 5is subject to
the control of his sons and the rest, regarding the immovable property6, whether self-acquired or
ancestral.

In Rao Balwant Singh v. Rani Kishori, 1898,; the Privy Council resolved this controversy and
held that the father had the complete power of alienation over his separate property, irrespective
of being moveable or immovable.

It has, however, been recognized all along in Dayabhaga that the father has the absolute
alteration power over all the properties, whether self-acquired or ancestral.

On one hand, Vijnaneshwara restricted the father8s alienation power over his self-acquired
immovable properties, contrarily the father was conferred with wider powers over movable
ancestral properties. However, it is presently a settled law that a Mitakshara the father is by no
means greatly empowered over movable joint family properties compared to the immovable
ones.

The sole power a father has been conferred is the power of making 5gift of love & affection6.
Another power that is being held by a father is the power of alienating joint family property for
discharging his personal debts.

Gifts of love and affection

According to Mitakshara:

1. The father is empowered to 5make a gift of love and affection6 of movable joint
family property.
2. Such gifts may be made by him to his:

 Own wife;
 Daughter;
 Son in law; or
 Any other close relation.
 These gifts of the moveable property may consist of 3

1. Jewels,
2. Silver or gold ornaments,
3. Clothing,
4. Cash, or
5. Any other moveable property.

Such gifts are usually made on occasions like marriage, upanayana, mundana, or when the
daughter visits her paternal home, or during the daughter8s childbirth, etc.

Landmark Judgments
  Kandasami vs. Somakanda (1910)

It was observed in this case that Karta can alienate the joint family property, after obtaining the
concept of the other Coparceners, even in the absence of legal necessity, the benefit of the estate,
or acts involving indispensable obligation. Provided that the consenting Coparceners are adults.

 Manohar vs. Dewan (1985)

Dewan Chand, the father of the appellants, sold off land for Rs. 8000/-. The appellants filed a
suit for joint possession over the said land, alleging that they constituted a joint Hindu family
with their father, that the land sold was a coparcenary property, and that the sale was executed
without any consideration and legal necessity. The suit was contested by the vendors who
opposed all the allegations and further pleaded that the sale having been made for the benefit of
the family, and being an act of good management was, therefore, binding on the plaintiffs. The
Trial Court after recording evidence of the parties negatived the plea that the property was
coparcenary property and further held that the sale was executed in exchange for consideration
and legal necessity and as an act of good management dismissed the suit. Its findings were
affirmed on appeal which led to the filing of this second appeal by the plaintiffs. Here it was held
that any alienation lacking the consent of Coparceners and also for any purpose excluding legal
necessity shall be void ab initio.

 Rani vs. Shanta (1970)

Here disputes arose regarding the sale of part of joint family property. It was contended by the
plaintiffs that the said property was sold by their mother without any legal necessity and undue
influence. Here, the Trial Court ruled against the Plaintiffs so they appealed before the High
Court of Kolkata.

The High Court ruled in favor of the plaintiffs, to which the defendants filed an appeal before the
Supreme Court.
The Supreme Court observed that It is now established that 7necessity8 is not to be appreciated in
the sense of what is absolutely indispensable but what in accordance with the notions of a Hindu
family, would be regarded as proper and reasonable.

 Jagatnarain vs. Mathuradas (1928)

The question before the court in the case was regarding the meaning and implications of the term
5benefit of the estate6 as asserted for the reason of alienation of joint family property.

The Allahabad High Court ruled that anything done for improving the property shall be deemed
as a benefit of the estate.

 Gangi vs. Tammu (1927)

A person had two sons, one of who had predeceased him, leaving only one son, the present
plaintiff. The younger son and his son were the present defendants. There were also several
daughters.

That person had made 3 wills before his death asserting that the properties were self-acquired.
However, such properties were later found to be ancestral and thus could not be disposed of
through will.

The Privy Council, in this case, held that dedication of a portion of the joint family property for
the purpose of religious charity may validly be made by the Karta, if the property allotted is
small compared to the absolute means of the family. Such alienation cannot be made through a
will.

Conclusion

The idea of Karta in a Joint Hindu Family isn8t only a place of intensity but it also serves a very
important role. With the Karta being the leader of the Joint Hindu Family, the family gets a
legitimate structure and appropriate capacities. The Karta goes about as concentrating power. As
he is the leader of the family, he has legitimate understanding and information to make suitable
choices that are appropriate for the family. Centralization is the way to great administration and
is given by the Karta. Despite the considerable number of forces the Karta has, a ton of checks
has been additionally forced on the Karta to forestall any abuse of power. This guarantees that
the Karta works for the government assistance of the Joint Hindu Family. The Karta have
multitudinous rights and powers. He can practice these rights in any way he thinks fit as long as
all things are considered for the more noteworthy benefit of the family. Alongside such
extraordinary forces, he has various liabilities, for example, upkeep of the relatives and keeping
legitimate accounts.

The idea of alienation has progressed on a long journey, and the Courts have also played a very
important role in their growth, but the weaknesses still exist in the present situation, and they still
need to overcome the weaknesses, and to make laws that are beneficial by taking into account
the interests of all concerned members.

The alienee8s duty of showing whether he had taken adequate precautions to determine that there
was a genuine need should be lifted, then in cases of illegitimate alienation, the transferor would
be needed to show that there was a specific situation that warranted urgent redress. It would be
so because the alienee as an outsider is not in a reasonable position to determine it, so much a
duty placed on such deals would make borrowers unable to invest with shared property, which in
effect would negatively impact the interests of joint family members.

Explain the rules regarding setting aside of alienation of coparcenary property

Setting Aside Alienations:

In Tamil Nadu, Maharashtra and Gujarat, if a member of a Mitakshara joint family sells or
mortgages more than his own interest in the joint family property, the other members can have
such an alienation set aside to the extent of their own interest. The only exception to this rule is
where an alienation is for a legal necessity, or is for payment by a father of any antecedent debt,
not incurred for immoral purposes. However, the entire alienation cannot be set aside in such a
case, because in these States, a coparcener can alienate his own interest in the joint family
property. Likewise, if any other coparcener has consented to the alienation, the share of such a
coparcener will also be bound by the alienation.
In Ftottala v. Pulicat (1904 27 Mad. 162), the Court has held that the rule that a coparcener
cannot make a gift of his share, cannot be evaded by making a sale at a grossly inadequate price.
It may also be noted that if an alienation is not for legal necessity or for payment of an
antecedent debt, and is therefore set .aside by the other coparceners, the transferee is not entitled
to a refund of a proportionate part of the purchase-money in respect of those shares.
If a member of a joint family governed by the Mitakshara Law as prevailing in West Bengal,
Bihar and U.P. sells or mortgages the joint family property, or even a part thereof, without the
consent of his coparceners, the alienation is liable to be set aside wholly, unless it was for a legal
necessity or for the payment by the father of an antecedent debt.

Thus, such a purported alienation does not even pass the share of the alienating coparcener. In
case of such an alienation, the other coparceners can obtain a declaration that the alienation is
void in its entirety. As such an alienation does not bind the share of the alienor himself, it cannot
similarly bind the share of a consenting coparcener also.
Where a sale is effected by the father, and the suit is brought by the sons in their father8s life-
time to set aside the sale (the sale not being one for a legal necessity or for payment of an
antecedent debt), the question may arise as to whether the sons are entitled to a decree without
refunding the whole or any part of the purchase money to the purchaser.
There is a conflict of opinion on this point, and the Calcutta High Court has held that in such a
case, they would have to refund the whole of the purchase money. The High Courts of Lahore,
Allahabad and Orissa, on the other hand, have taken a contrary view.
Objection to alienation by Coparceners existing at the time of the alienation:
If a coparcener makes an alienation in excess of his power, it can be set aside, to the extent
mentioned above, at the instance of any other coparcener who was in existence at the time of the
completion of the alienation. A similar right is given to a coparcener, who though born
subsequent to the date of the alienation, was in his mother8s womb at the date of such an
alienation. The reason behind this rule is that, under the Hindu Law, a son who is conceived is, in
many respects, as good as a son who is born.
Thus, A, who is governed by the Mitakshara Law, makes a gift of certain ancestral property to B.
As on the date of the gift, A has no son, but a son is born to him two months later. This gift can
be
set aside at the instance of the son, as he was in his mother8s womb at the date of the gift. As the
transaction is a gift, it will be set aside altogether, and not merely to the extent of the son8s share.
If an alienation is valid when made, it cannot be impeached by a son who is adopted after the
date of the alienation.
Limitation for setting aside alienations:
The period of limitation for setting aside an alienation by a father of joint family property is
twelve years from the date on which the transferee takes possession of the property. If, however,
the transferee has not taken possession of the property, the only right of the son is to obtain a
declaration to the effect that the deed of transfer is invalid, and the period of limitation in such a
case is six years.