Joint family and Coparcenary

Mitakshara school and joint family

• It is a presumption that ‘every Hindu family is joint family’, they cannot escape from the joint family.

• Hindu family is joint family when it is joint in food, worship and estate.

• Composition of joint family: consists of ‘common ancestor’ and all lineal male

descendants up to any generationTogether with wife or wives, or widows and

unmarried daughters of the common ancestor

existence of the common ancestor is necessary for bringing a joint family in to existence,

For its continuance also common ancestor’ plays a good role

The death of the common ancestor does not mean that the joint family will come to an end.

Common ancestor is also called as ‘last holder, kartha, head of the family and eldest male member of the family’

Corporate personality and composite family: HJF is not a corporation, it is not a juristic personality. it has no legal entity distinct and separate from that of

the members who constitute it. It is a unit and in all affairs it is represented by its Kartha

or head. No outsider, except by adoption can be welcomed in the

family The status in the family can be acquired only by taking

birth in the family or by adoptions or by marriage.

When two or more families agree to live and work together, pool their resources, throw their gains and labour into the joint stock and shoulder the common risk, there comes into existence the composite family.

For the purpose of assessment of tax: the revenue statutes use the expression, ‘Hindu Undivided Family’ – this term is used purely to determine in which category the income should be assessed.

When property is purchased in the joint names: it is for the person who alleges it to be a separate property, to prove it.

Daughters are also made coparceners by virtue of sec 6(1) of THE HINDU SUCCESSION (AMENDMENT) ACT, 2005

Coparcenary: coparcenary is a narrow body of persons within a joint family, and consists of the father, son, son’s son, son’s son’s son.

It consists of father and three male lineal descendants;

In its continuance, the existence of the father-son relationship is not necessary, the coparcenary may consist of grand-father and grand-children, brothers, uncles and nephew and so on.

• Sole surviving coparcener:- Incidents of coparcener ship: 1. Coparcener has right only by birth or adoption2. Until partition takes place, it is an unpredictable and

fluctuating interest which may be enlarged by deaths and diminished by births in the family

3. Every coparcener has the right to be in joint possession and enjoyment of joint family property – community of interest and unity of possession.

4. Every coparcener has a right to be maintained including a right to marriage expenses being defrayed out of family funds.

5. Every coparcener is bound by the alienations made by the Kartha for legal necessities or benefit of the estate and 6. Every coparcener has a right to object and challenge alienations made without his consent, made without legal necessities 7. Every coparcener has the right to seek partition and survivorship.8. Coparcenary cannot be created by an agreement, it is the creature of law.

Illegitimate son as a coparcener: is always regarded as a member of his putative father’s joint family and as such has a right to be maintained out of the joint family funds during his entire life,

- He has not been considered as a coparcener;- A putative father is generally a man whose legal

relationship to a child has not been established, but claims to be the father or who is alleged to be the father to a child who is born to a woman to whom he is not married at the time of the child's birth.

Mother becomes the natural guardian for the illegitimate son and over the mother’s property he has the right to seek share;

Coparcenary between the sane and insane person: an insane coparcener is entitled for maintenance not a share in the coparcenary property;

- On his cure of insanity his rights revive. In any case his son is not excluded from taking a share in the partition.

9. Coparcenary between a father and sons born of civil marriage: If a Hindu performs a marriage under the Special Marriage Act, 1954, with a non-Hindu, his interest in the Joint family property is severed.- It does not mean that there cannot be a coparcenary between such a Hindu and a son born to him out of that marriage, provided his son is a Hindu.

10. Coparcenary within coparcenary: it is possible that separate coparcenary may exist within a coparcenary.11. No female can be a coparcener: no female except daughter can be its member, though they are members of the Joint family- It means no female except the daughter has right by birth in the joint

family property.- Hindu Women’s Right to Property Act, 1937 – widow, by succession, on

the undivided share of the husband take absolutely not the coparceners in the family,

- the result was the right of other coparceners were suspended until the widow gives a share to them. (repealed, new provisions for women is inserted in HAS)

- Sec 3(3) gives her a right to seek partition also.

Classification of Property

1. Apratibandha Daya and Sapratibandha Daya2. Joint family property or Coparcenary property and

Separate or Self acquired Property.Apratibandha daya means unobstructed heritage –

all property inherited directly by the male ancestor by the reason of falling within 3 generations, and

Sapratibandha daya means obstructed heritage – going beyond the 3 generation and the previous ancestors are the obstruction to inherit the property.

Joint family property or coparcenary property – the important factor of every HJF.

- classified into following heads; property inherited from father, father’s father or

father’s father’s father, (u/s 8 HAS)Property inherited from maternal grand-father

and Inherited from any other relation (never a joint

property)

Case laws on property inherited from maternal grand-father

• Venkayyamma v. Venkatarayyamma (1902)25 Mad – 2 brothers inherited from maternal grand father, one of them died without a male issue, his wife claimed on the rule of succession and the brother on the rule of survivorship (mitakshara Law), Madras provincial court gave the ruling in favour of the brother to inherit the property as the last sole surviving heir.

• In Md. Husain v. Kisheva 1937 PC- went against the earlier judgment and held that when a Hindu inherits property from his maternal grand mother or father, his son does not acquire any interest by birth in the family.

Property thrown into common stock and blended property: when a coparcener mixes his separate property with the joint family property, and deals with his separate property in a manner that he leaves no doubts that he wants to treat it as part of the joint family property, such property becomes a joint family property.

- This is known as ‘throwing in to the common stock’- If he mixes his property with the joint family property

it is known as blending.

- In Mallesappa v. mallappa, 1961 SC 1268 – Gajendragadkar.J , said that ‘the conduct on which the plea of blending is based must clearly and unequivocally show the intention of the owner of the separate property to convert his property into an item of joint family property,

- A mere intention to benefit the members of the family by allowing them the use of the income from the separate property may not necessarily be enough to justify an inference of blending’.

In Narayanan v. Radhakrishna 1976, SC 1715 – Shah J – said, ‘ the separate property or self-acquired property of a coparcener may be impressed with the character of joint family property, if it is voluntarily thrown by the owner into the common stock with the intention of abandoning his separate claim therein,-but to establish such abandonment, a clear intention by waiver of separate rights must be established.

Recovered joint family property

When one coparcener, without any assistance from the joint family funds or from his fellow coparceners recovers with the acquiescence of his coparceners, ancestral property which has been lost to the joint family without any possibility of recovery, the property so recovered will be:

The separate property of the recovered.

Accretions

• Accretions are all incomes, accumulations, or acquisitions of property made with the joint family nucleus. It includes:

a) Accumulations of income of the joint family property;b) Property purchased or acquired with the intention of

the joint family, andc) Proceeds of the sale of joint family property or

property purchased out of such sale-proceeds;- These have been, all along, accepted as part and parcel

of joint family property.

Separate or Self- Acquired Property

• Yajnavalkya sums up the doctrine of self-acquisition as:

whatever is acquired by the coparcener himself, Without detriment to the father’s estate, As a present from a friend, orA gift at nuptial, Does not appertain to the co-heirs,Earning remuneration, fee or commission, an

element of skill or labour may also be involved.

Rights of coparceners• To sum up: every coparcener has,Right of joint ownership;Right of joint possession;Enjoyment and use of joint family property;Right of survivorship;Right of alienation of undivided interest under certain

circumstances;Right to seek maintenance;Right to challenge improper alienation made by Karta or any

coparcener;Right to partition;

KartaIntroduction: o He is called as the manager of the JHF.o He possess a pivotal position.o No office or institution in any other system of the world

which can be compared with it.o His position is sui generis – Sui generis is a Latin

phrase, meaning "of its own kind/genus" and hence "unique in its characteristics".

o person with limited powers but within the ambit of his sphere, he possesses such vast powers as are possessed by none else.

Who can be Kartao Senior male member: o Junior male member: with the consent of all other

coparceners and they can withdraw their consent any time.

o Female members: the SC in Commr. Of Income Tax v. Seth Govind Ram 1966 SC 2 , after reviewing the Hindu texts, held – only the coparcener can be Karta, as female is not a coparcener she can not be Karta.

o After coming into force of Amendment Act of 2005, a woman is now a coparcener, the bar of her becoming a Karta should also be no longer there.

Karta’s Liabilities1. Responsible to maintain all members of the family & coparceners;2. Exclusion to maintain or does not properly maintain - can be sued;3. Responsible for performing the marriage of all unmarried

members in the family; especially towards the daughters;4. He has to prepare and maintain the accounts;5. He represents the family vis-à-vis the government and all

outsiders 6. He has to pay taxes and other dues to the authorities7. He can be sued on behalf of the family members by the

government and also by outsiders

Karta’s powers

1. Powers of management;2. Right to income;3. Right to representation; ‘legal, social & religious’4. Power of compromise; - before the court and also with

the member of the society5. Power to refer a dispute to arbitration;6. Power of acknowledgment;7. Power to contract debt;8. Power to enter into contract9. Power to alienate;

Power of alienation• According to Vignaneshwara there are 3 exceptional cases in

which alienation of joint family property could be made:1. Apatkale – in the time of distress2. Kutumbarthe – for the sake of family (maintenance)3. Dharmarthe – for the performance of indispensable dutiesThe other words used are –4. Legal necessity – which includes apatkale as well as

kutumbarthe,5. Benefit of estate – includes part of kutumbarthe,6. Acts of indispensable duty – includes the whole of

dharmarthe

Dayabhaga Joint family• Under Dayabhaga there is no joint family between son and

father;• There is no concept coparcenary as in mitakshara; • Son has no right by birth, so father can give away his

immovable properties without the consent of any other male member in the family;

• All properties – coparcenary or self acquired devolve by succession;

• If a son dies leaving behind a widow or daughter, then she will succeed and become a coparcener – thus dayabhaga school of law recognizes woman to be coparcener;

• There can not be coparcenary of father and son, grand father and grand son, though it can be of uncles and nephews;

• Dayabhaga coparcener takes a defined share; there is no fluctuations by births and deaths in the family;

• Doctrine of survivorship is not applicable;• All heritage is saprthibandadaya (obstructed) and no concept

of aprathibandadaya;• Every coparcener takes a defined share and he is entitled to

alienate the same.• Karta – different in enjoyment of powers and liabilities