[..4 A..]
JOINT FAMILY
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A) THE MITAKSHARA JOINT FAMILY
QUESTION BANK
Q.1. Explain Dayabhaga and Mitakshara Joint family
Q.2. Write a detailed note on- “Property under Mitakshara Law’
Q.3. How a ‘Joint Hindu Family’ serves as a social security institution?
Q.4. Discuss the separate or self-acquired property under Hindu Law
Q.5. What are the remarkable features of Mitakashara Joint family?
SHORT NOTES
1) ‘Joint family property’ or ‘coparcenary property’
SYNOPSIS
I] JOINT FAMILY
- a) Joint Family
- b) Composition of joint family
- c) Hindu undivided family
II] COPARCENARY-
- a) Its formation
- b) Incidents of coparcenary.
1) Interest by birth.
2) Joint possession and enjoyment.
3) Right of maintenance.
4) Bound for alienation made by Karta.
5) Object and challenge alienation.
6) Partition and survivorship.
7) Creature of Law.
III] COPARCENARY PROPERTY.
1) Unobstructed and Obstructed Heritage.
(i) Unobstructed Heritage (apratibandh daya).
(ii) Obstructed heritage (sapratibandha daya).
2) Joint Family Property and Separate property.
(a) Joint Family Property or coparcenary property.
(i) Property inherited from paternal ancestors-
(ii) Blended Property-
(iii) Property acquired by utilizing coparcenary property.
(b) Separate or self-acquired property.
Gains of learning (Gains of science).
(i) Position before passing of Hindu Gains of Learning Act, 1930.
(ii) After passing of Hindu Gains of Learning Act, 1930
I. JOINT FAMILY.
a) Joint Family:-
The Mitakshara joint family is a unique contribution of Hindu jurisprudence that has no parallel to any ancient or modern law system. Joint family has been the fundamental aspect of Hindu life for ages. For a Hindu, there is no escape from the joint family; maybe in one generation, it is brought to an end by partition, but again, in the next generation, it comes into existence automatically. Therefore, in law, there is a presumption that every Hindu family is a joint family.
b) Composition of joint family[1]:-
A Hindu joint family consists of a common ancestor[2] and all his lineal male descendants[3] up to any generation with the wife or wives (or widows) and unmarried daughters of the common ancestor and the lineal male descendants. The death of a common ancestor does not mean that the joint family ends. It still continues with the lower link and new generations.
A joint Hindu family is not a corporation. It has no legal entity[4] distinct and separate from its members. It is a unit, and in all affairs, it is represented by the Karta or manager of the family. Its membership can be acquired only by birth in the family or by the marriage of women in the family. Outsiders can only be admitted into it by adoption and not anything else.
A joint Hindu family is also different from a composite family, wherein two or more families agree to live and work together, pool their resources[5], throw their gains and labour into the joint stock and shoulder the common risk.
Joint Hindu family vis a vis ‘nuclear family’. A nuclear family consists of a husband, wife, or children. It is a small family in which the children leave the parental households as soon as they marry. Such a separate son creates a separate residence and family. The American family is an example of a nuclear family.
whereas an extended family (or joint family) is the merger of several nuclear families. Thus, a small extended family may include some generations, e.g., an old man and his wife, their son, the son’s wife, and the son’s children. On the other hand, a large extended family may include the old man and his wives, their married sons, unmarried children, etc. The Hindu family is an example of the extended family.
C) Hindu undivided family[6]:-
The revenue laws used the expression “Hindu Undivided Family” for taxation. The Supreme Court has held that the term “Hindu Undivided family” carries the same meaning as “joint Hindu family.” The normal characteristic of every Joint Hindu family is that it is joint in food, worship, and estate.
II. COPARCENARY[7]:-
a) Its formation:-
A Hindu coparcenary is a much narrower body than a joint family. It includes only those persons from the joint family who acquire, by birth, an interest in the joint or coparcenary property. Such persons are the father, son, son’s son, son’s son’s son. In other words, the coparcenary includes three generations of males (of unbroken descent) next to the property holder. For example suppose A is a father and B, C, D, E, F, G, and H are his seven linear (i.e. in one line) male descendants. The coparcenary consists of A, B, C and D and not E, F, G, and H. A is the last holder. Now, if A dies, the coparcenary will consist of B, C, D and E. On the death of A, B becomes the last holder, and E comes within the limit of four degrees. F, G and H, are not still coparceners. Thus, only the property holder’s sons, grandsons, and great-grandsons take interest therein by birth and not any other descendant who is in the next degree than three first. No female hair is treated as in traditional Hindu law coparcener, although she may be a member of the joint family. However, a female succeeding in the undivided interest of a coparcenary (under S. 6 of the Hindu Succession Act, 1956) can also be a coparcener under the Hindu Law. By the 2005 Amendment in the Act, females in specific relations are treated as coparceners.
b) Incidents of coparcenary:-
The incidents of the coparcenary are-
1. Interest by birth[8]:-
A coparcener has an interest in the joint family property by birth. In other words, by birth, his interest is vested in the property. However, until the actual partition takes place by meats and bonds, their shares are not predictable and fluctuate[9]. Thus, the interest or share of coparceners may be enlarged by deaths and diminished by births in the family of other coparceners until metes and bounds achieve the actual partition.
2. Joint possession and enjoyment[10]:-
Every coparcener has the right to be in joint possession and enjoyment of joint family property.
3. Right of maintenance[11]:-
Every coarcener has the right to be maintained, including the right to have marriage expenses defrayed out of joint family funds.
4. Bound for alienation made by Karta[12]:-
Every coparcener is bound by (a) the alienation made by the Karta for (i) the legal necessity of the family or (ii) the benefit of the family’s estate, and (b) by the legitimate acts of the manager or Karta.
5. Objection and challenge to alienation[13]:-
Every coparcener has the right to object and challenge alienations made without his consent or legal necessity.
6. Partition and survivorship[14]:-
Every coparcener has a right to partition and survivorship. He can establish his right of survivorship by suit.
7. Creature of Law[15]:-
A coparcenary cannot be created by agreement (except by agreement of adoption). It is a creature of law.
III] COPARCENARY PROPERTY.
A) Unobstructed and Obstructed Heritage:-
The Mitakshara School divides the property into two classes, viz-
1) Unobstructed Heritage (apratibandh daya)[16]:-
All properties inherited by a Hindu male from a direct male ancestor, not exceeding three degrees higher than him, are called unobstructed heritage (apratibandha daya). In this Property, his son, son’s son, and son’s son acquire an interest by birth. Therefore, it is called an unobstructed heritage.
2) Obstructed Heritage (sapratibandha daya)[17]:-
However, if the right to property accrues, not by birth but on the last owner’s death (without leaving any male issue), such property is called an “obstructed heritage”. It is called an “Obstructed heritage” because the survival of the owner of that property obstructs the accrual of the right to the property. Thus, the property, which devolves upon parents, brothers, nephews, uncles, etc., upon the last owner’s death, is an obstructed heritage.
The main difference between these two is that an unobstructed heritage devolves by survivorship, whereas an obstructed heritage devolves by succession. This distinction is recognised only at Mitakshara School. According to Dayabha School, all heritages are obstructed, and no person, not even a son, can take an interest by birth in his father’s property.
B) Joint Family Property and Separate Property:-
The Hindu Law classifies property into ‘joint family property’ and ‘separate property’.
1) Joint Family Property or Coparcenary Property:-
Joint family property is an unobstructed heritage. In other words, a person becomes entitled to it by birth in the family. The joint family property may flow from the following sources.
2) Property inherited from Paternal Ancestor:-
Property inherited by a person from his father, father’s father or father’s father, or property allotted at a partition is his ancestral property. In this property, his own son, son’s son or son’s son’s son acquires coparcenary rights by birth; it is, therefore, coparcenary property. The coparcenary property is also added by any purchases made with the income of the coparcenary property.
3) Blended Property[18]:-
Where a self-acquired or separate property of a member of a joint family is voluntarily thrown into the common stock, such property becomes joint family property; it is called blending.
In Pushpa Devi V/s I.T. Commissioner1
The court held that a female member of a Hindu joint family is not a coarcener and so cannot blend her separate property with joint family property.
4) Property acquired by utilising Coparcenary Property:-
When a property is acquired by utilising the income of coparcenary property, it is treated as coparcenary property.
In Bengal Insurance Corporation V/s Vellayamma2
Court Held: If the life of a joint family member is insured and the premiums are paid out of the joint family property, the insurance amount would be coparcenary property.
C) Separate or Self-Acquired Property:-
Separate or self-acquired property is a property that is not joint. The term ‘separate property’[19] implies that the property, which was formally joint, has now become separate. So, one can describe his property as separate from his brothers if he gets the same by partitioning. Suppose a coparcenary consists of the four brothers A, B, C and D. If D separates from his brothers, the portion of the coparcenary property allotted to him is his separate property. However, regarding D’s own sons, the property is joint. The term self-acquired property denotes that a coparcener has acquired the property by his own efforts and without the assistance of the family fund. No other coparcener or his sons have any interest in such property.
In Suresh Mahto V/s Sant Kumar Mahto
(AIR 2004 Jhar. 44)
The court held that if there is no evidence to show that there was the adequate nucleus of a joint family with Karta to purchase landed property or no evidence regarding Karta’s income that has yielded the nucleus to purchase landed property, the property is to be treated as the self-acquired property of individual coparceners and not joint family property.
Gains of Learning (Gains of science)[20]:-
The critical source of self-acquired property is known as ‘gains of learning’ or ‘gains of science’ or ‘vidyadhan’. The term learning signifies ‘education’, whether elementary, technical, scientific, special or general and training of every kind, which is usually intended to enable a person to pursue any trade, industry, profession or vocation. Thus, the term ‘gains of learning’ means all acquisitions of property made substantially utilizing learning.
The main question to such property is ‘if the training or education is given out of the joint family property, does it mean that anything acquired by the student on account of training or education received forms part of a joint Hindu property?.
Position before the passing of the Hindu Gains of Learning Act. 1930:-
Before 1930, courts used to distinguish between specialised and ordinary training. In cases where specialised training is imparted to a coparcener, his earnings out of that education or profession were treated as part of the joint family property. If a coparcener had received ordinary training or education, the property or earnings he made were treated as his self-acquired property.
2) After the passing of the Hindu Gains of Learning Act. 1930:-
After passing the Hindu Gains of Learning Act in 1930, the above distinction was removed. The Act provides that whether the training is ordinary or specialised, any gains made on training or education will constitute separate property of the acquirer.
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[1] एकत्र कुटुंब रचना [संयुक्त परिवार की रचना]
[2] पूर्वज [समान पूर्वज]
[3] वंषपरंपरागत पुरुश वंषज
[4] कायदेषीर अस्तित्व [कानूनी अस्तित्व]
[5] संसाधने
[6] हिंदू अविभक्त कुटुंब [हिन्दू अविभाजित परिवार]
[7] सहवारसदारी/सहहिस्सेदारी [सहभागी]
[8] जन्माने हितसंबंध प्रस्थापित [जन्म से ही हित]
[9] अनिष्चित कमी-जास्त होणारे [अनुमानित और उतार-चढ़ाव]
[10] एकत्र ताबा व उपभोग [संयुक्त कब्जा और आनंद]
[11] उपजीवेकेचा हक्क [भरण-पोषण का अधिकार]
[12] हस्तांतरण बंधनकारक [कर्ता द्वारा किए गए अलगाव के लिए बाध्य]
[13] हस्तांतरणाला आव्हान [अलगाव पर आपत्ति और चुनौती]
[14] वाटणी आणि उत्तरजीविता [विभाजन और उत्तरजीविता]
[15] कायदयाव्दारे निर्मिती [कानून की पैदाईश]
[16] विना अडथळा वारसा [अबाधित विरासत]
[17] अडथळासहित वारसा [सप्रतिबंध विरासत/ बाधित विरासत]
[18] स्वतः मिळवलेली [मिश्रित संपत्ति]
1 AIR 1977 SC 2230.
2 ILR 1937 Mad. 990.
[19] स्वतंत्र मिळकत [अलग संपत्ति]
[20] विद्याप्राप्त लाभ [सीखने के लाभ (विज्ञान के लाभ)]