Hindu Joint Family

Hindu Joint Family

Submitted by: by: Parneet Kaur Saroy

Submitted to: Dr.Jaimala Dr.Jaimala

55/13,B.A.LL.BHon!." Se#tion$A

 

A#%no&led'ement

 ()e !u##e!! and *nal out#ome o+ t)i! ro-e#t reuired reuired a lot o+ 'uidan#e and a!!i!tan#e +rom many eole and  am e0tremely +ortunate to )ae 'ot t)i! all alon' t)e #omletion o+ my ro-e#t &or%. 2)ateer  )ae done i! only due to !u#) 'uidan#e and a!!i!tan#e and  &ould not +or'et to t)an% t)em.  o&e my ro+ound 'ratitude to my ro-e#t 'uide Dr.Jaimala, Dr.Jaimala, &)o too% %een intere!t on our ro-e#t &or% and 'uided u! all alon', till t)e #omletion o+ our ro-e#t &or% by roidin' all t)e ne#e!!ary in+ormation +or deeloin' a 'ood !y!tem. Parneet Kaur Saroy.

 

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Table of Cases Introduction Composition of Hindu Joint Family Ouster Of a member from the Joint family Coparcenary Incidents of Hindu Joint Family Fa mily Incidents of coparcenership Rights of members of joint Hindu family Ancestral Property ibliography

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ntrodu#tion

The Hindu joint family is a normal condition of the Hindu society. Its origin can be traced to the ancient patriarchal system where the patriarch or the head of the family was the unquestioned ruler, laying down norms for the members of his family to follow, obeyed by everyone in his family, famil y, and having an unparallel control over their lives and properties. At the root was the general family welfare or promotion of family as a unit for which personal interests of the family members could be sacrificed. The ancient system generally treated the  property acquired by the members of the family as family property or the joint joint property of the family with family members having one or the other right over it. With gradual transformation of the society and recognition of the members of the family as independent in their own right, concept of separate property and rules for its inheritance were developed. This dual property system, though considerably diluted, has survived the lashes of time, the  judicial and legislative onslaught and the Hindu society still recognises the joint family  property as unique entities having no similar concept alive anywhere else in the world.

Composition of Hindu Joint Family; A Hindu !oint "amily consists of all male members descended lineally from a common male ancestor together with their mothers, wives or widows and unmarried daughters. # An  An unmarried daughter on marriage ceases to be a part of her father$s joint family and joins her husband$s joint family as his wife. If a daughter becomes a widow or is deserted by her husband and returns to her father$s house permanently, she again becomes member of her father$s joint family. Her children however don$t become members of her father$s father $s joint family and continues being member of their father$s joint family. %ven an illegitimate son of a male descendant would be a member of his father$s joint family. & a child in womb till it is  born is not a member of the joint family for ta'ation purposes purposes but is treated as in e'istence for certain purposes under Hindu law.( To bring into e'istence a joint family for the first time the presence of the seniormost male member is an essential condition. However, once the joint family comes into e'istence it continues despite the death of this male member.

. #. &. (.

)r.*oo )r.*oonam nam *radhan *radhan +a'ena, +a'ena, "amily "amily aw aw ectu ectures, res, & rd %dition-#&/, e'is 0e'is, 1&. +urjit +urjit al v. v. 2ommis 2ommission sioner er of Incom Incomee Ta' Ta',, -345/ -345/   IT6 447. 447. 8ur 0arain )as )as v. 8ur Tahal Tahal )as, AI6 AI6 31# +2 ##19 ##19 :ellaiy :ellaiyappa appa 2hetty v. 0atarajan, 0atarajan, AI6 3& 3& *2 #3(. +rinivasan +rinivasan v. v. 2ommiss 2ommissione ionerr of Income Income Ta' Ta',, AI6 AI6 37# ;ad ;ad (7. (7.

The members of a joint family are bound together by the fundamental principle of sapinda< ship or family relationship, which is the essential feature of this institution. The cord that

=nits the members of the family is not property but the relationship with one another. 1 A Hindu joint family is not a corporation. 7 A Hindu joint family has no legal entity distinct and separate from that of the members who constitute it. It is not a juristic person either. 4 Hindu  joint family is a unit and in all affairs it is represented by its >arta. Within Within its fold no outsider, e'cept by adoption, can be admitted by agreement or otherwise. It confers a status on its members which can be acquired only by birth in the family or by marriage to a male member.5 Ouster Of a member from the Joint family;

An unmarried daughter ceases to be a part of her father$s joint family on her marriage and may regain her status if she becomes a widow or if on being deserted by the husband comes  bac= to her father$s house permanently. permanently. A child male or female born in the family can cease to be member of this family if he or she is given in adoption to another family by a person competent to do so under the law. The marriage of a lineal male member under the +pecial marriage Act,31( to a non
1. 7. 4. 5. 3.

+upra , 1(. )r.*aras )r.*aras )iwan, )iwan, ;odern ;odern Hindu Hindu aw-# aw-#(/, (/, Allah Allahabad abad aw Agen Agency cy,#5& ,#5&.. 2hotel 2hotelal al v. v. !han !hande delal lal,, 34# 34# All. All. (#( (#(.. 6am >umar >umar v. v. 2ommiss 2ommissione ionerr of Income Income Ta', 31& 31& All. All. 1 +upra , 11.

Coparcenary;

He Hindu joint family must be distinguished from Hindu coparcenary. coparcenar y. The latter is a much narrower body than the joint family. The The coparcenary includes only those persons who by  birth acquire an interest in the joint or coparcenary property. property. They are the sons, sons, son$s sons sons and son$s son$s son$s sons of the holder of the joint family famil y property for the present. pres ent. The essence of a coparcenary under the ;ita=shara aw is unity of ownership and unity of  possession. The ownership of the the coparcenary property vests in the whole body of coparceners. As long as the family is joint, no individual member can predicate of the joint undivided property, that is, he has certain and definite share therein. The rights of each coparcener consists in a common possession and common enjoyment of the whole coparcenary. To understand the conception of coparcenary it is necessary to note the distinction between ancestral and separate property. The property inherited by a Hindu from his father$s father and father$s father$s father is ancestral property. *roperty inherited by other relations is his separate property. The essential feature of ancestral property is that if the person inheriting it has sons, grandsons or great grandsons, they become joint owners with him. They become entitled to it by reason of their birth. "ather, son, son$s son and son$s son$s son$s son together constitute coparcenary, because they have common ownership in the ancestral property. 0o coparcenary can commence without a common male ancestor, though after his death it may consist of collaterals, such as brothers, uncles and nephews, cousins, etc. A member of a joint family may be removed more than four degrees from the common ancestors and yet he may  be a coparcener. If he can demand demand partition he is a member of coparcenary. ?nly those members of joint family can demand partition who are within four degrees from the last holder of the property. Incidents of Hindu Joint Family; 2a4 A common male ancestor is necessary to bring the Hindu joint family in e'istence but is not necessary for its continuation. After the death of such common male ancestor the rest of the family continues to be a joint Hindu family. It is said that upper lin=s are removed and lower lin=s are added. 2b4 A Hindu joint family is purely a creature cr eature of law. This means, it cannot be created by the act of the members or an agreement between the parties. Therefore, a stranger cannot be made a member of a Hindu joint family even by agreement. The only e'ception is marriage and adoption. # . ;.* Tan Tandon don,, "amily "amily aw in in India India , (th edition -33/, Allahabad aw Agency,&7. . Id , &4. #. #. +upr +upraa ,17 ,17..

2c4 A Hindu joint family has no legal entity distinct or separate from its members. It is a unit and is represented by the manager of the joint family who is called >arta. It

cannot be sued in its own name. It is neither a juristic person nor a corporation and therefore cannot convey the property in its joint character. 2d4 The status of a joint family member can be lost by conversion to another faith, by marriage to a nonarta for legal necessity or benefit of the estate and by the legitimate acts of management of the >arta9 every coparcener has a right to object and challenge alienations made without his consent or made without legal necessity9 and every coparcener has a right of partition and survivorship. 7 he can establish his right of survivorship by suit. 4 &. +upra , 14. (. >anta v. 6ajah -57&/ 3 ;.I.A 1&39 :enugopala v. @?I, 373 +2 3(. 1. 6ajagopala v. :en=ataraman,3(4 *.2 ##9 2handra v. >ana=, 341 )el. 41. 7. +tate an= of India v. 2hamandi 6am, 373 +.2, &&. 4. +oam v. >unBang, 35# +i==im #7.

In *" Jaya :a
-a/ Four )eneration RuleC The lineal male descendants of a person, up to fourth generation, acquire on birth, an interest in the coparcenary property held by him. -b/ Creation of :a9 C i=e a joint family, coparcenary is also a creation of law and cannot be formed by an agreement between the parties. -c/ 0o stranger can be introduced introduced in the coparcenary. coparcenary. ?nly ?nly a male child, born in the family or validly adopted, can c an become a coparcener. coparcene r. In ;ita=shra coparcenary, no female e'cept a daughter can be its member, though they are members of the joint family. It means that no female e'cept the daughter has any interest by birth in the  joint family property. +he has no right of survivorship or partition, partition, though if a  partition ta=es place, certain females are entitled to a share. -d/ Ac?uisition of interest by birth; A coparcener in a joint family is born with an interest in the coparcenery property which means that the moment he is born in the family he gets a right by birth in the ownership of the coparcenery property. Thus, Thus, if the family comprises the father and his two sons, all three of them have an interest in the coparcenery property. -e/ 8nity of Possession and Community of Interest;  one of the basic features of coparcenery is unity of possession and community of interest. 3 All the coparceners  jointly own the coparcenery property and till a partition ta=es place and their shares are specifically demarcated no one can claim ownership over any specific item of the coparcenery property. This means that all coparceners have a right of common enjoyment or common use of the property. -f/ 8npredictable and fluctuating interest;  The most remar=able feature feature of interest by birth is that the interest which a coparcener acquires by birth is not a specified or fi'ed interest. At no time before partition can it be predicted that he is entitled to so much share in the joint family property. 0or can he say that such items of property belong to him, even if the properties are in his possession or use. The interest fluctuates with the births and deaths in the family. # 5. 331 +.2. 331. 3. >atama 0atchiar v. The 6ajah of +hivagunga, 57& ;IA 1&3. #. Tundra v. Tiwari, 34# ;.*..! (.

-g/ Right of 7aintenance; 7aintenance; %very coparcener and every other member of the joint family has a right of maintenance out of the joint family property. The right of maintenance subsists through the life of the member so long as family remains joint. "emale members and other male members who do not get a share on partition, either because

they have no right, such as an unmarried daughter or because they are disqualified from getting a share, such as an idiot or lunatic coparcener, are entitled to maintenance even after partition. @nmarried daughters have a right to be married out of the joint family funds. ?ther members marriage e'penses are also to be defrayed out of joint family funds. -h/ Coparcener@s right to restrain and challenge alienation;  When the father, the >arta, the coparcener and the sole surviving coparcener overstep their power, the alienation can be challenged. It can be challenged the moment the person entitled to challenge comes to =now of it and till it is not barred by limitation. Whenever an alienation is challenged, the burden of proof is on the alienee to show that it was for a valid purpose. %ven when sons challenge an alienation made by the father for discharging his personal debts, it is for the alienee to show that the debt was ta=en by the father, though if sons assert that the debt was tainted, the burden of proof that the debt was tainted is on the sons. +ometimes a stranger can also challenge an alienation, such as purchaser of a coparcener$s interest may challenge an improper alienation. -i/ Coparcener@s right of partition;  After the Amendment Act of #1 a daughter since would be a coparcener shall have a right to as= for partition. As a general rule, both under the ;ita=shara and the )ayabhaga schools, every coparcener has a right to  partition and every coparcener is entitled to a share on partition. Apart Apart from the coparceners, no one else has a right to partition. 0o female e'cept the daughter has a right to partition, but, if partition ta=es place, there are certain females who are entitled to a share. These females are father$s wife, mother and grandmother etc. under the Hindu 6ight to *roperty Act, 3&4, a ;ita=shara coparcener$s widow too= the same interest which her husband had at the time of his death. +he was given the right to partition.

-j/ Illegitimate son as a coparcener;  Hindu law has never considered an illegitimate child as a filius nullius. An illegitimate son, particularly dasiputra has 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. However, he is not

considered as an coparcener. Among the sudras, his position is slightly better. )uring the life time of his father, he is not a coparcener with his father, and therefore has no right to as= for partition. ut if partition ta=es place , the father is free to allot a share to him, even a share equal to a legitimate son. He is entitled to ta=e only half a share of what he would have ta=en had he been a legitimate son. -=/ Coparcenary bet9een a sane and insane person;  There can be a coparcenary  between a sane and an insane person. A coparcener gets his right in the coparcenary  property by birth and there is nothing in Hindu law which shows that such a right right is irrevocably e'tinguished on a supervening insanity. If partition ta=es place he has no share in property, but this does not ma=e him hi m cease to be a coparcener. When he is cured of insanity, both his rights revive. In any case his son is not e'cluded from ta=ing a share in the partition. # -l/ Coparcenary 9ithin coparcenary;  It is possible that separate coparcenaries may e'ist within a coparcenary.

Rights of members of joint Hindu family; In a Hindu joint family, all its members do not have equal rights. The interest in the coparcenary property is with the coparceners, including a right to demand its partition, and a right to challenge its unauthorised alienation made by >arta. All other female members including the widows of deceased coparceners, and illegitimate sons of lineal male descendants, have a right of maintenance out of the joint family funds and a right of residence in the joint family home. ##

#. >umar 6asheswari 0audan v. 6.. hagwati +aran, 37 +.2.! 7(5. ##. +upra 7, #3#.

Ancestral Property; All property inherited by a male Hindu from his father, father$s father, and father$s father$s father, is ancestral property as regards his son, grandson and great grandson. *roperty

inherited from any other relation is not ancestral property but it is the separate property of the  person inheriting it. The essential feature of the ancestral property according to ;ita=shara law is that the sons, grandsons and great grandsons of the person who inherits it acquire an interest in it by birth. Their rights attach to it by their birth. ut according to )ayabhaga the male issue of the inheritor do not acquire any interest by birth in such property as they do according to ;ita=shara law. A Hindu father or the managing member has power to ma=e a gift within reasonable limits of  ancestral immovable property for Dpious purposes$. The properties of the following description are ancestral propertiesC -a/ Accretions"  Accumulations of income of ancestral property, property property purchased or acquired out of income of or with the assistance of ancestral property, the sale  proceeds of ancestral property, and property purchased out of such proceeds proceeds or obtained in lieu of such property are all ancestral property and constitute joint family  property.#& -b/ Residue"< Where a member of a joint family has assigned his undivided interest to a creditor to satisfy claims to satisfy claims which do not e'haust the entire value of interest, any residue continues to be ancestral property.#( -c/ -a!ings"< !udicial 2ommittee pointed out all savings made out of ancestral property and all purchases or profits made from the income or sale of ancestral property would form part of ancestral or coparcenery property, whether such savings or acquisitions were made before or after the birth of a son. #1 -d/ Inherited Property"< *roperty inherited by two brothers from their father is ancestral  property. If one of them alone has a son, that son by his birth acquires not only an interest in the share of his father but a right of survivorship even in respect of the rest of the property. propert y.

#&. Isree *rasad v. 0asib >ooer, -55(/  2al 4. #(. >rishnaswami v. 6ajagopala, -531/ 5 ;ad 4&, 5&. #1. al ahadur v. >anhaiyalal, -34/ &( IA 71C#3 All #(( -*2/.

8nobstructed Heritage; 2 Apratibandha +aya4

Ancestral property is unobstructed heritage. The essential feature of unobstructed heritage, according to ;ita=shara aw is that the sons, grandsons and great grandsons acquire an

interest in the property inherited by birth. Their rights attach to it by their birth. The property is called unobstructed because the accrual of the right to it is not obstructed by e'istence of the owner. Thus, Thus, if A inherits its property from his father f ather or grandfather or great grandfather it is ancestral property or unobstructed heritage in the hands of A is an obstruction to his son acquiring an interest but as regards other relations he holds it as his absolute property. If A has no male issue, other relations have no interest in the property during the life time of A.

Obstructed Heritage; 2 -apratibandha +aya4

*roperty inherited by a Hindu from a person other than his father, grand father, and great gran father is obstructed heritage. It is called obstructed because the accrual of the rights to it is obstructed by the e'istence of the owner. The owner holds it as his separate and absolute  property. The relations of the owner do not ta=e a vested interest in it by birth. birth. They are entitled to it only on the death of the owner. Thus, Thus, the property which devolves on parents,  brothers, uncles, nephews, etc., on the death of the last owner is obstructed heritage. "or "or e'ample A inherits certain property from his brother. A has a son . the property is obstructed in the life
#7. +upra , (.

ibliography

+r"Poonam Pradhan -a=ena# Family :a9 :ectures# 0 rd Bdition2'5$04# Bdition2'5$04# :e=is *e=is 7"P Tandon# Family :a9 in India # ( th edition 2$%%54# Allahabad :a9 Agency +r"Paras +i9an# 7odern Hindu :a92'5$(4# Allahabad :a9 Agency