Detail of JOINT HINDU FAMILY

JOINT HINDU FAMILY

JOINT HINDU FAMILY

The joint Hindu family consists of all persons lineally descended, however remotely, from a common ancestor. Such a family includes wives and unmarried daughters of male members. The whole body of such a family, consisting of males and females, constitutes a sort of corporation where members are joint by way of their sapinda relationship to each other.

   A crucial feature of the joint Hindu family is that the members of such a family hold property in common, which is managed by the Karta, i.e. the common male ancestor, for the benefit of all in the family. The following kinds of properties are included in the joint family property:

1.      paternal property, i.e. property inherit from father, father's father or father's father's father;

2.      acquisitions with the help of the joint family property;

3.      joint acquisition without the help of joint family property; and

4.      self-acquired property which has voluntarily been thrown into the common stock.

Coparcenary

Traditionally, the distinction was based on 1) the position of the eldest male ancestor, i.e.  the Karta, 2) how close in descent were the relatives from this common male ancestor, and 3) gender.

    Regarding point one, the managership of the joint family property has always gone to a male member by seniority. The father was ordinarily the manager, i.e. the Karta, and after his death his elder son generally became the Karta.

    Unless the Karta relinquished his right or there were exceptional, extraordinary or compelling circumstance, juniors in the family could not exercise this right.

    The position is still the same. Only today, on the death of a common male ancestor, a daughter with her sisters or a daughter with her father can also continue a coparcenary, with the eldest of them being the Karta. The earlier objections to a woman being a Karta were based on the fundamental rule of Hindu law that only a coparcener can be a Karta and females were not a part of the coparcenary. Now since a daughter is a also a coparcener, there is no ground for such an objection.

    Regarding point two, only those who were removed from the common male ancestor by three degrees were entitled to inherit family property on his death - they were and are known as coparceners, and they collectively constituted the coparcenary. A coparcener, in other words, is one who shares equally with others in inheritance in the estate of a common ancestor.

    Regarding point three, since  the Hindu family system itself was one that was patriarchal, daughters were excluded and could never be coparceners. Daughters and widows were initially only entitled to maintenance and later, by way of the Women's Right to Property Act, 1937 a Mitakshara widow was only entitled to a limited to a limited estate. A daughter is, however, now included in the coparcenary by way of the Hindu Succession (Amendment) Act, 2005; and a widow's limited estate has how now been abolished and now she has complete rights over any estate inherited, except those that devolve as  part of a gift, Will or other such instrument.

    The objective of the institution was to keep ancestral property together. Therefore, according to this system, whenever there was a son born there came into existence a new coparcenary between the father and the son because now there existed a common male ancestor, i.e.  the father with respect to the son.

Nature of ownership

Ownership of property can be of many kinds, however, there are three basic types of ownership. In case one, one can imagine a person A owning some property, exclusively.

   In another case, there may be A, B and C who may decide to purchase certain property. In this case, they all jointly hold the property and each would have a share in it. Upon the death of any of them, their share of the property would go to their heirs.

   However, there is a third mode of ownership also which is distinct from the above two, and is similar to the way joint Hindu family property is owned in the Mitakshara coparcenary. Joint Hindu family in the Mitakshara is owned by all of them together as a community or a corporation. That is, the property is held by the joint family coparcenary as a separate entity but by none of the coparceners individually, even though on partition they are entitled to a share in it. The whole body of coparceners has in them the ownership and possession of the coparcenary property. No single partner can define or depict or lay his finger on a particular portion of property and say that it is his own definite (one-fourth or one-third or one-fifth) share. A member's interest is, therefore, described as his "undivided coparcenary interest". Community of interest and unity of possession between the members of a family are important characteristics.

    No coparcener, except the Karta, has the right to deal with the family property or sell his undivided share, but they all on dissolution have a share. The Karta too cannot alienate except for necessity and with the concurrence of all. In that sense, no one really owns the corporation, as in the first two cases discussed above, they only own it collectively with some designated persons appointed as managers, i.e. the  Karta. The Mitakshara coparcenary, therefore, has a separate juristic nature.

    Even so, a Mitakshara coparcenary is different from corporate ownership in many ways. For one, the rights of coparceners is not acquired by sale but by birth. A Hindu coparcenary is a creature of law. Agreement between parties cannot create it. The share of each coparcener keeps changing depending on the number of births and adoptions in the family. If a child is born within three degrees from the common male ancestor then the share of each member gets reduced correspondingly. Before the 2005 Amendment, upon the death of a coparcener, the deceased's property devolved to the remaining coparceners by survivorship and not to his heirs. However that law has now changed and a deceased coparcener's share now passes to his heirs by testamentary or intestate succession. Though a coparcenary has a separate juristic nature for certain purposes, the Supreme Court has almost contradictorily stated that the joint family is not a juristic person for some purposes and, therefore, cannot hold property independently.

    In the Dayabhaga School, the ownership of the joint family property is not with the group of coparceners and they have never had a right in it by birth or by survivorship. They only get a right in the property when the common ancestor dies and at that time they hold the property not jointly, as in the Mitakshara, but rather as partners, each owning a particular portion of the joint property which becomes manifest on partition.

Presumptions as regards coparcenary and coparcenary property

1.      A Hindu family is presumed to be joint in food, worship and estate. The burden to prove otherwise is on the person who alleges separation.

2.      A family once proved or admitted to be joint is, in the absence of proof of separation, presumed to have continued as joint.

3.      Where it is proved or admitted that a petition has taken place, the burden of proving that a particular portion of the family property is still joint lies on him who alleges it. This is a presumption of fact and not one of law.

4.      Separate self-acquired property of a member of a joint Hindu family 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.

Rights of coparceners

1. Karta's right of alienation. - The Karta is its manager and he is entitled to alienate joint family property so as to bind the  interests of both adult and minor coparceners in the property.

2. Rights to enforce partition. - A coparcener can file a suit to enforce partition but he cannot sue for a declaration for the amount of his share because his share becomes fixed only after partition. However, where the father is joint with his father other collateral members, the son cannot enforce a partition. The Bombay High Court has recognised this rule in Apaji Narhar v. Ramchandra.

3. Right to dispose of property in certain cases. - A coparcener having a right in the joint family property is competent to dispose of his/her share in the property. However, this right is defeated in the following six cases:

a)      Where the deceased coparcener has left an issue representing his share

b)      Where he has sold or mortgaged his interest as in Mumbai or Chennai.

c)      Where his interest is attached.

d)      Where such a decree is passed in his lifetime but the judgement-debtor being his father grandfather or great grandfather, the interest is not attached.

e)      Where the deceased coparcener's interest is vested in the official assignee or receiver on his insolvency.

f)        Coparceners, by means of a document, may give up their right of survivorship by mutual agreement, support by legal consideration.

   4. Right to renounce. ­- A coparcener may renounce his interest in the coparcenary property in favour of all or any of the coparceners.

  5. Right of alienation.

  6. Right to set aside alienation.

  7. Right to account.

  8. Rights to make self-acquisitions.

  9. Right to restrain unauthorised acts.

 10. Right to income and saving from a property allotted.

 11. Right to maintenance and necessary expenses.

 12. Right to make a Will.

 13. Right against adverse possession and exclusion from joint family property.

Obligations of minor members

Alienation made for a new business by a managing member of the family was not binding on the minor members but had an exception and that was if the new business was for the benefit of the estate of the family or was for legal necessity, the alienation made even for a new business by the managing member of the family was binding upon the minor members. It is for the court to decide whether it was so beneficial and was such as an ordinary prudent manager would have entered into the interest of the family.

Partition

Partition is the act of dividing. It is a division of the estate among the contestants in accordance with their shares in the estate. It is the bringing of the joint status to an end.

Partition and family arrangement: Difference

1.      As to type of decision. - Family arrangement can never be a unilateral decision, whereas partition may be effected by a unilateral declaration.

2.      As to object. - While the object of a family arrangement is settling of a bona fide dispute arising out of conflicting claims to property, it is not so in partition.

What property can be partitioned?

Coparcenary property, whether movable, is liable to partition. however, the following properties cannot be partitioned:

1.      Impartible property, i.e. property which by custom or under any provision of law.

2.      Self-acquired property of a member.

3.      Property which by its very nature is indivisible. For example, animals, furniture, etc. are not divisible.

A common passage or land reserved for common use, common courtyard and staircase are also impartible.