Family Law II
COPARCENARY & JOINT HINDU FAMILY
Joint Hindu Family
A Hindu joint family consists of the common ancestor and all his lineal male descendants upto any generation together with the wife or wives (or widows) and unmarried daughters of the common ancestor and of the lineal male descendants. The existence of the common ancestor is necessary for bringing a joint family into existence, for its continuance common ancestor is not a necessity.
According to Sir Dinshah Mulla, “ A joint Hindu family consists of all persons lineally descended from a common ancestor, and includes their wives and unmarried daughters. A daughter ceases to be a member of her father's family on marriage, and becomes a member of her husband's family.
A joint and undivided family is the normal condition of Hindu society. An undivided Hindu family is ordinarily joint not only in estate, but also in food and worship. The existence of joint estate is not an essential requisite to constitute a joint family and a family, which does not own any property, may nevertheless be joint. Where there is joint estate, and the members of the family become separate in estate, the family ceases to be joint. Mere severance in food and worship does not operate as a separation.
The property of a joint family does not cease to be joint family property belonging to any such family merely because the family is represented by a single male member who possesses rights which an absolute owner of a property may possess. It may even consist of two females members. There must be at least two members to constitute Joint Hindu family. A single male or female cannot make a Hindu joint family even if the assets are purely ancestral.
In Narenderanath v. Commissioner of Wealth Tax, the Supreme Court held that the expression 'Hindu undivided family' in the wealth Tax Act used in the sense in which a Hindu joint family is understood in the personal law of Hindus and a joint family may consist of a single male member and his wife and daughters and there is nothing in the scheme of the Wealth Tax Act to suggest that a Hindu undivided family as assessable unit must consist of a least two male members.
In Commissioner of Income Tax v. Gomedalli Lakshminarayan there was a joint family consisting of a father and his wife and a son and his wife, the son being the present assessee. On the death of father the Question raised is whether the assessee is to be assessed as an individual or as a member of the joint Hindu family, It was held that the son's right over the property is not absolute because two females in the family has right of maintenance in the property, therefore the income of the assessee should be taxed as the income of a Hindu undivided family.
In Anant v. Shankar it was held that on the death of a sole surviving coparcener, a Hindu Joint Family is not finally terminated so long as it is possible in nature or law to add a male member to it. Thus there can also be a joint family where there are widows only.
Coparcenary
A Hindu coparcenary is a much narrower body that the joint family. It includes only those persons who acquire by birth an interest in the joint or coparcenary property. These are the sons, grandsons and great-grandsons of the holder of the joint property for the time being, in other words, the three generations next to the holder in unbroken male descent.
Ancestral property is a species of coparcenary property. As stated above if a Hindu inherits property from his father, it becomes ancestral in his hands as regards his son. In such a case, it is said that the son becomes a coparcenar with the father as regards the property so inherited, and the coparcenary consists of the father and the son. However, this does not mean that coparcenary can consist only of the father and his sons. It is not only the sons but also the grandsons and great grandsons who acquire an interest by birth in the coparcenary property. Coparcenary begins with a common male ancestor with his lineal descendants in the male line within four degrees counting from and inclusive of such ancestor. The Mitakshara concept of coparcenary is based on the notion of son's birth right in the joint family property.
Though every coparcenary must have a common ancestor to start with, it is not to be supposed that every extant coparcenary is limited to four degrees from the common ancestor. When a member of a joint family is removed more than four degrees from the last holder, he cannot demand a partition, and therefore he is not a coparcenar. On the death, however, of the last holder, he would become a member of the coparcenary, if he was fifth in descent from him and would be entitled to a share on partition, unless his father, grandfather and great-grandfather had all predeceased the last holder. Whenever a break of more than three degrees occurs between any holder of property and the person who claims to enter the coparcenary after his death the line ceases in that direction and the survivorship is confined to those collaterals and descendants who are within the limit of four degrees.
In Ceylon- Attorney-General of Ceylon v. A. R. Arunachalam Chettiar case a father and his son constituted a joint family governed by Mitakshara School of Hindu Law. The father and the son were domiciled in India and had trading and other interests in India. The undivided son died and father became the sole surviving coparcener in a Hindu Undivided family to which a number of female members belonged. In this the court said that the widows in the family including the widow of the predeceased son had the power to introduce coparceners in the family by adoption and that power was exercised after the death of son.
In Gowli Buddanna v. Commissioner of Income-Tax, Mysore a family consisting of father, his wife, his two unmarried daughters and his adopted son. After the death of father question arises whether the sole male surviving coparcener of the Hindu joint family, his widowed mother and sisters constitute a Hindu undivided family within the meaning of the Income tax Act ? In this case it was held by the court property of a joint family does not cease to belong to the family merely because the family is represented by a single coparcener who possesses rights which an owner of property may possess. The property which yielded the income originally belonged to a Hindu undivided family.
In Moro Vishvanath v. Ganesh Vithal plaintiffs and defendants are descendants of one Udhav. The defendants are all fourth in descent from him. The plaintiffs, however are, some fifth, and others sixth in descent from him. The question, however, whether, assuming them to be undivided, the plaintiffs are entitled to sue at all for a partition according to Hindu Law, is one of considerable importance and difficulty. It was urged that Plaintiffs cannot claim from the defendants any partition of property descended from that common ancestor. It was held that upon a consideration of athe authorities cited, it seems to me that it would be difficult to uphold the appellants' contention that a partition could not, in any case be demanded by descendants of a common ancestor,more than four degrees removed, of property originally descended from him.
Suppose a coparcenary consisted originally of A,B,C,D,E,F,G and H, with A as the common ancestor. Suppose A dies first, then B, then C, then D, and then E, and that G has then a son I, and H has a son J and J has a son K. On E's death the coparcenary will consist of F,G,H,I,J and K. Suppose that G,H and J die one after another , and the only survivors of the joint family are F,I and K. Are I and K coparceners with F ? Yes, though I is fifth in descent from A, and K is sixth in
descent from A. The reason is that either of them can demand a partition of the family property from Here the coparcenary consists of three Collaterals,namely, F,I and K.
The essence of a coparcenary under Mitakshara law is unity of ownership. The ownership of the coparcenary property is in the whole body of coparceners. According to the true notion of an undivided family governed by Mitakshara law, no individual member of that family, whilst it remains undivided, can predicate, of the joint and undivided property, that he, that particular member, has a definite share. His interest is a fluctuating interest, capable of being enlarged by deaths in the family, and liable to be diminished by births in family. It is only on partition that he becomes entitled to a definite share. The most appropriate term to describe the interest of a coparcener in coparcenary property is 'undivided coparcenary interest'. If a Mitakshara coparcener dies immediately on his death his interest devolves on the surviving coparceners.
The Supreme Court has summarised the position and observed that the coparcenary property is held in collective ownership by all the coparceners in a quasi-corporate capacity. The incidents of coparcenary are :
1 The lineal male descendants of a person upto the third generation, acquire on
birth ownership in the ancestral properties of such person;
2 such descendants can at any time work out their rights by asking for partition;
3 till partition each member has got ownership extending over the entire property
conjointly enjoyment of the properties is common;
4 as a result of such co-ownership the possession and enjoyment of the
properties is common;
5 no alienation of the property is possible unless it is for necessity, without the
concurrence of the coparceners and
6 the interest of a deceased member passes on his death to the surviving
coparceners.
Every 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. No female can be a coparcener under Mitakshara law. Even wife, though she is entiteled to maintenance.
Difference between Joint Hindu Family and Coparcener
1 In order to constitute a Joint Hindu family the existence of any kind of property is not required whereas in Coparcenary there exists a ancestral property.
2 Joint Hindu family consist of male and female members of a family whereas in Coparcenary no female can be a coparcener.
3 Coparcenars are members of the Joint Hindu Family whereas all the members of Joint Hindu family are not Coparcenars.
Dayabhaga School on Coparcenar and Joint Hindu Family :
According to the Dayabhaga law, the sons do not acquire any interest by birth in ancestral property. Their rights arise for the first time on the father's death. On the death they take such of the property as if left by him, whether separate or ancestral, as heirs and not by survivorship. Since the sons do not take any interest in ancestral property in their father's lifetime, there can be no coparcenary in the strict sense of the word between a father and sons according to the Dayabhaga law. The father can dispose of ancestral property, whether movable or immovable by sale, gift, will or otherwise in the same way as he can dispose of his separate property. Since sons do not acquire any interest by birth in ancestral property, they cannot demand a partition of such property from the father. A coparcenary under the Dayabhaga law could thus consist of males as well as females. Every coparcenar takes a defined share in the property, and he is owner of that share. It does not fluctuate with birth and deaths in family.
JOINT HINDU FAMILY PROPERTY
Mitakshara divides property into tow classes, namely, apratibandha daya or unobstructed heritage, and sapritibanda daya or obstructed heritage. Property in which a person acquires an interest by birth is called unobstructed heritage, because the accrual of the right to it is not obstructed by the existence of the owner. The right to it arises from the mere fact of their birth in the family, and they become coparceners with their paternal ancestor in such property immediately on their birth, ancestral property is unobstructed heritage. All properties inherited by a Hindu male from a direct male ancestor, not exceeding three degrees higher to him is called apratibandha daya.
Property, right to which accrues not by birth but on the death of the last owner without leaving male issue, is called obstructed heritage. It is called obstructed, because the accrual of the right to it is obstructed by the existence of the owner. Thus the property which devolves on parents, brothers, nephews, uncles, etc., upon the death of the last owner, is obstructed heritage. These relations do not take a vested interest in the property by birth. Their right to it arises for the first time on the death of the owner.
Coparceners can restrain the holder of sapratibandha daya from alienating it, while in case of apratibandha daya its holder, so long as he is living, has absolute rights of alienation over it: he may gift it inter inter vivos or by will, he may sell it or mortgage. Unobstructed heritage devolves by survivorship, obstructed heritage, by succession.
The distinction between obstructed and unobstructed heritage is peculiar only to Mitakshara School. According to Dayabhaga, all heritages are obstructed, for, according to the doctrines of that school, no person, not even a son, takes an interest by birth in the property of another. Dayabhaga does not recognise the principle of survivorship.
Joint Family Property
The Joint Hindu family is purely a creature of Hindu law, and those who own it are called coparceners. Property jointly acquired by the members of a joint family with the aid of ancestral property is joint family property. The Hindu joint family property is like a big reservoir in which property flows in from various sources and from which all members of joint family drew out to fulfill their multifarious needs. The joint family property may flow into it from various sources. Property according to the Hindu law, may be divided into two classes, namely :-
1 Ancestral Property
All property inherited by a Hindu male from his father, father's father, or father's father's father, is ancestral as regards his male male issue, even enough it was inherited by him after his death of a life-tenant. A father cannot change the character of joint family property into absolute property of his son by merely marking a will and bequeathing it or part of it to the son as if it was the self-acquired property of the father. In the hands of the son the property will be ancestral property and the natural or adopted son of that son will take interest in it and be entitled to it by survivorship as joint family property. Where a number of sons inherit their father's self-acquired property, they hold it as joint family property if at the time of his death they are living as members of a joint family.
In Atar Singh v. Thakar Singh it was stated that judgment that unless the lands came “by descent from a lineal male ancestor in the male line, they are not deemed ancestral in Hindu Law.”
Property acquired by a father by adverse possession would not be ancestral property in his hands and his sons would not take interest in it by birth. In a case the Privy Council held that a maternal uncle is not an ancestor, and it has accordingly been held that property inherited from a maternal uncle is not ancestral property.
In Chelikani Venkayyamma v. Venkatar Amanayyamma the property which had descended from the maternal grand-father to his two grandsons. On the death of one of the grandson the widow of the deceased claimed to recover a moiety of the estate from the surviving grandson(Brother). The question was whether the property of the maternal grandfather descended, on the death of his daughter, to her two sons jointly with benefit of survivorship. Their Lordships decided that the estate was governed by the rule of survivorship, and the claim of the widow was, therefore negatived. This decision of the court was criticsed.
In Muhammad Husain Khan v. Babu Kishva Nandan Sahai one G inherited certain property from his maternal grandfather J. Under a will made by G the property which G inherited from his maternal grandfather was to go to his son B and on the death the property was to vest in B's widow, Giri Bala. During the life time of B, in an execution of a money decree against him the said property was sold. B then brought a suit, claiming possession of the property. The validity of the will executed by G is challenged on the ground that the testator had no authority to dispose of the property, as it belonged to a Hindu coparcenary consisting of himself and his son. In their Lordships' opinion the estate which was inherited by G, from his maternal grandfather cannot be held to be ancestral property in which his son had an interest jointly with him. G consequently had full power of disposal over that estate, and the devise made by him in favour of his daughter-in-law could not be challenged by his son or any other person. ON the death of her husband, the devise in her favour came into operation and she became the absolute owner of the village property, as of the remaining estate ; and the sale of that village in execution proceedings against her husband could not adversely affect her title.
Property inherited by a person from collaterals, such as a brother, uncle, etc, or property inherited by him from a female is his separate property. The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. If the coparcener dies without leaving male issue, it passes to his heirs by succession. Accumulations of income of ancestral property, property purchased or acquired out of income proceeds of sale of ancestral property and property purchases out of such proceeds are ancestral property.
In C.N. Arunachala Mudaliar v. C.A. Muruganatha Mudaliar case, Issue was whether property obtained by a gift or will from paternal ancestor are to be regarded as ancestral or self-acquired properties. In this case there were allegation that there were joint property of a family consisting of himself, his father and his brothers and that he was entitled in low to one-third share in the same. Plaintiff and his brother, are both sons are from first wife of their father, who predeceased her husband. The father assert an exclusive title to the joint family property denying any right of his sons. Father claimed that some of the property is his self acquired property and other properties were self-acquired property of his father and he got them under a will executed by his father. In connection to this case the court referred the case of Ram Balwant v. Rani Kishori. In this case the Lordship held that chap.1,Sec.1 verse 47of Mitakshara contained only moral or religious precepts while those in S.5, verses 9 and 10 embodied rules of positive law. It was held that the father of a joint family governed by Mitakshara law has full and uncontrolled powers of disposition over his self acquired immovable property and his male issue could not interfere with these rights in any way. Further in Muddan Gopal v. Ram Buskh it was held that a Mitakashara father is not only competent to sell his self-acquired immovable property to a stranger without the concurrence of his sons. While referring another case Sital v. Madho and Bawa Misser v. Rajah Bishen where it was held that a Mitakshara father can make a gift of his self acquired property to one of his sons to the detriment of another and he can make even an unequal distribution amongst his heirs. Going through above cases court concluded that a property gifted by a father to his son could not become ancestral property in the hands of the donee simply by reason of the fact that the donee got it from his father or ancestor. On reading the will as a whole the court held that it becomes clear that the testator intended the legatees to take the properties in absolute right as their own self-acquisition without being fettered in any way by the rights of their sons and grandsons.
Son takes at his birth in the ancestral property is wholly independent of his father. He does not claim through the father, and, therefore, a transfer is allowed by law, cannot affect the interest of the son in the property. However, the father has a special power of disposal of ancestral property for certain purposes. The father has the power of making within reasonable limits gifts of ancestral movable property without the consent of his sons. A Hindu father of other managing member has power to make a gift within reasonable limits of ancestral immovable property for pious purposes. A member of a joint family cannot dispose of by will a portion of the property even for charitable purposes and even if the portion of the property bears a small proportion to the entire estate.
2 Separate Property
Property acquired in any of the following ways is the separate property of the acquirer; it is called 'self acquired' property. Following are the some examples of Separate Property :-
1 Obstructed Heritage
2 A gift of a small portion of ancestral movable made through affection by a
father to his male issue is his separate property.
3 Property granted by Government to a member of a joint family.
4 Ancestral property lost to the family, and recovered by member without the
assistance of joint family property.
5 Income of separate property
6 Property obtained as his share on partition by a coparcener who has no male
issue
7 Property held by sole surviving Coparcenar when there is no widow in
existence who has power to adopt.
8 Separate earnings of a member of a joint family.
9 Gains of learning.
In Dipo v. Wassan Singh, plaintiff sued to recover possession of the properties which belonged to her brother, who died. She claimed to be the nearest heir. The defendants the sons of paternal uncle contest that they were preferential heirs according to custom, as the whole of the land was ancestral in the hands of the deceased. The court said that properties in the hands of deceased are properties which originally belonged to his ancestors. But deceased was the last male holder of the property and he had no male issue. There was no surviving member of a joint family, be it a descendant or otherwise, who could take the property by survivorship. Property inherited from paternal ancestors is, of course, ancestral property' as regards the male issue of the propositus, but, it is his absolute property and not ancestral property as regards other relations. It was held that the defendants were collaterals of deceased and as regards them the property was not 'ancestral property' and hence the plaintiff was the preferential heir.
Joint Hindu Family
A Hindu joint family consists of the common ancestor and all his lineal male descendants upto any generation together with the wife or wives (or widows) and unmarried daughters of the common ancestor and of the lineal male descendants. The existence of the common ancestor is necessary for bringing a joint family into existence, for its continuance common ancestor is not a necessity.
According to Sir Dinshah Mulla, “ A joint Hindu family consists of all persons lineally descended from a common ancestor, and includes their wives and unmarried daughters. A daughter ceases to be a member of her father's family on marriage, and becomes a member of her husband's family.
A joint and undivided family is the normal condition of Hindu society. An undivided Hindu family is ordinarily joint not only in estate, but also in food and worship. The existence of joint estate is not an essential requisite to constitute a joint family and a family, which does not own any property, may nevertheless be joint. Where there is joint estate, and the members of the family become separate in estate, the family ceases to be joint. Mere severance in food and worship does not operate as a separation.
The property of a joint family does not cease to be joint family property belonging to any such family merely because the family is represented by a single male member who possesses rights which an absolute owner of a property may possess. It may even consist of two females members. There must be at least two members to constitute Joint Hindu family. A single male or female cannot make a Hindu joint family even if the assets are purely ancestral.
In Narenderanath v. Commissioner of Wealth Tax, the Supreme Court held that the expression 'Hindu undivided family' in the wealth Tax Act used in the sense in which a Hindu joint family is understood in the personal law of Hindus and a joint family may consist of a single male member and his wife and daughters and there is nothing in the scheme of the Wealth Tax Act to suggest that a Hindu undivided family as assessable unit must consist of a least two male members.
In Commissioner of Income Tax v. Gomedalli Lakshminarayan there was a joint family consisting of a father and his wife and a son and his wife, the son being the present assessee. On the death of father the Question raised is whether the assessee is to be assessed as an individual or as a member of the joint Hindu family, It was held that the son's right over the property is not absolute because two females in the family has right of maintenance in the property, therefore the income of the assessee should be taxed as the income of a Hindu undivided family.
In Anant v. Shankar it was held that on the death of a sole surviving coparcener, a Hindu Joint Family is not finally terminated so long as it is possible in nature or law to add a male member to it. Thus there can also be a joint family where there are widows only.
Coparcenary
A Hindu coparcenary is a much narrower body that the joint family. It includes only those persons who acquire by birth an interest in the joint or coparcenary property. These are the sons, grandsons and great-grandsons of the holder of the joint property for the time being, in other words, the three generations next to the holder in unbroken male descent.
Ancestral property is a species of coparcenary property. As stated above if a Hindu inherits property from his father, it becomes ancestral in his hands as regards his son. In such a case, it is said that the son becomes a coparcenar with the father as regards the property so inherited, and the coparcenary consists of the father and the son. However, this does not mean that coparcenary can consist only of the father and his sons. It is not only the sons but also the grandsons and great grandsons who acquire an interest by birth in the coparcenary property. Coparcenary begins with a common male ancestor with his lineal descendants in the male line within four degrees counting from and inclusive of such ancestor. The Mitakshara concept of coparcenary is based on the notion of son's birth right in the joint family property.
Though every coparcenary must have a common ancestor to start with, it is not to be supposed that every extant coparcenary is limited to four degrees from the common ancestor. When a member of a joint family is removed more than four degrees from the last holder, he cannot demand a partition, and therefore he is not a coparcenar. On the death, however, of the last holder, he would become a member of the coparcenary, if he was fifth in descent from him and would be entitled to a share on partition, unless his father, grandfather and great-grandfather had all predeceased the last holder. Whenever a break of more than three degrees occurs between any holder of property and the person who claims to enter the coparcenary after his death the line ceases in that direction and the survivorship is confined to those collaterals and descendants who are within the limit of four degrees.
In Ceylon- Attorney-General of Ceylon v. A. R. Arunachalam Chettiar case a father and his son constituted a joint family governed by Mitakshara School of Hindu Law. The father and the son were domiciled in India and had trading and other interests in India. The undivided son died and father became the sole surviving coparcener in a Hindu Undivided family to which a number of female members belonged. In this the court said that the widows in the family including the widow of the predeceased son had the power to introduce coparceners in the family by adoption and that power was exercised after the death of son.
In Gowli Buddanna v. Commissioner of Income-Tax, Mysore a family consisting of father, his wife, his two unmarried daughters and his adopted son. After the death of father question arises whether the sole male surviving coparcener of the Hindu joint family, his widowed mother and sisters constitute a Hindu undivided family within the meaning of the Income tax Act ? In this case it was held by the court property of a joint family does not cease to belong to the family merely because the family is represented by a single coparcener who possesses rights which an owner of property may possess. The property which yielded the income originally belonged to a Hindu undivided family.
In Moro Vishvanath v. Ganesh Vithal plaintiffs and defendants are descendants of one Udhav. The defendants are all fourth in descent from him. The plaintiffs, however are, some fifth, and others sixth in descent from him. The question, however, whether, assuming them to be undivided, the plaintiffs are entitled to sue at all for a partition according to Hindu Law, is one of considerable importance and difficulty. It was urged that Plaintiffs cannot claim from the defendants any partition of property descended from that common ancestor. It was held that upon a consideration of athe authorities cited, it seems to me that it would be difficult to uphold the appellants' contention that a partition could not, in any case be demanded by descendants of a common ancestor,more than four degrees removed, of property originally descended from him.
Suppose a coparcenary consisted originally of A,B,C,D,E,F,G and H, with A as the common ancestor. Suppose A dies first, then B, then C, then D, and then E, and that G has then a son I, and H has a son J and J has a son K. On E's death the coparcenary will consist of F,G,H,I,J and K. Suppose that G,H and J die one after another , and the only survivors of the joint family are F,I and K. Are I and K coparceners with F ? Yes, though I is fifth in descent from A, and K is sixth in
descent from A. The reason is that either of them can demand a partition of the family property from Here the coparcenary consists of three Collaterals,namely, F,I and K.
The essence of a coparcenary under Mitakshara law is unity of ownership. The ownership of the coparcenary property is in the whole body of coparceners. According to the true notion of an undivided family governed by Mitakshara law, no individual member of that family, whilst it remains undivided, can predicate, of the joint and undivided property, that he, that particular member, has a definite share. His interest is a fluctuating interest, capable of being enlarged by deaths in the family, and liable to be diminished by births in family. It is only on partition that he becomes entitled to a definite share. The most appropriate term to describe the interest of a coparcener in coparcenary property is 'undivided coparcenary interest'. If a Mitakshara coparcener dies immediately on his death his interest devolves on the surviving coparceners.
The Supreme Court has summarised the position and observed that the coparcenary property is held in collective ownership by all the coparceners in a quasi-corporate capacity. The incidents of coparcenary are :
1 The lineal male descendants of a person upto the third generation, acquire on
birth ownership in the ancestral properties of such person;
2 such descendants can at any time work out their rights by asking for partition;
3 till partition each member has got ownership extending over the entire property
conjointly enjoyment of the properties is common;
4 as a result of such co-ownership the possession and enjoyment of the
properties is common;
5 no alienation of the property is possible unless it is for necessity, without the
concurrence of the coparceners and
6 the interest of a deceased member passes on his death to the surviving
coparceners.
Every 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. No female can be a coparcener under Mitakshara law. Even wife, though she is entiteled to maintenance.
Difference between Joint Hindu Family and Coparcener
1 In order to constitute a Joint Hindu family the existence of any kind of property is not required whereas in Coparcenary there exists a ancestral property.
2 Joint Hindu family consist of male and female members of a family whereas in Coparcenary no female can be a coparcener.
3 Coparcenars are members of the Joint Hindu Family whereas all the members of Joint Hindu family are not Coparcenars.
Dayabhaga School on Coparcenar and Joint Hindu Family :
According to the Dayabhaga law, the sons do not acquire any interest by birth in ancestral property. Their rights arise for the first time on the father's death. On the death they take such of the property as if left by him, whether separate or ancestral, as heirs and not by survivorship. Since the sons do not take any interest in ancestral property in their father's lifetime, there can be no coparcenary in the strict sense of the word between a father and sons according to the Dayabhaga law. The father can dispose of ancestral property, whether movable or immovable by sale, gift, will or otherwise in the same way as he can dispose of his separate property. Since sons do not acquire any interest by birth in ancestral property, they cannot demand a partition of such property from the father. A coparcenary under the Dayabhaga law could thus consist of males as well as females. Every coparcenar takes a defined share in the property, and he is owner of that share. It does not fluctuate with birth and deaths in family.
JOINT HINDU FAMILY PROPERTY
Mitakshara divides property into tow classes, namely, apratibandha daya or unobstructed heritage, and sapritibanda daya or obstructed heritage. Property in which a person acquires an interest by birth is called unobstructed heritage, because the accrual of the right to it is not obstructed by the existence of the owner. The right to it arises from the mere fact of their birth in the family, and they become coparceners with their paternal ancestor in such property immediately on their birth, ancestral property is unobstructed heritage. All properties inherited by a Hindu male from a direct male ancestor, not exceeding three degrees higher to him is called apratibandha daya.
Property, right to which accrues not by birth but on the death of the last owner without leaving male issue, is called obstructed heritage. It is called obstructed, because the accrual of the right to it is obstructed by the existence of the owner. Thus the property which devolves on parents, brothers, nephews, uncles, etc., upon the death of the last owner, is obstructed heritage. These relations do not take a vested interest in the property by birth. Their right to it arises for the first time on the death of the owner.
Coparceners can restrain the holder of sapratibandha daya from alienating it, while in case of apratibandha daya its holder, so long as he is living, has absolute rights of alienation over it: he may gift it inter inter vivos or by will, he may sell it or mortgage. Unobstructed heritage devolves by survivorship, obstructed heritage, by succession.
The distinction between obstructed and unobstructed heritage is peculiar only to Mitakshara School. According to Dayabhaga, all heritages are obstructed, for, according to the doctrines of that school, no person, not even a son, takes an interest by birth in the property of another. Dayabhaga does not recognise the principle of survivorship.
Joint Family Property
The Joint Hindu family is purely a creature of Hindu law, and those who own it are called coparceners. Property jointly acquired by the members of a joint family with the aid of ancestral property is joint family property. The Hindu joint family property is like a big reservoir in which property flows in from various sources and from which all members of joint family drew out to fulfill their multifarious needs. The joint family property may flow into it from various sources. Property according to the Hindu law, may be divided into two classes, namely :-
1 Ancestral Property
All property inherited by a Hindu male from his father, father's father, or father's father's father, is ancestral as regards his male male issue, even enough it was inherited by him after his death of a life-tenant. A father cannot change the character of joint family property into absolute property of his son by merely marking a will and bequeathing it or part of it to the son as if it was the self-acquired property of the father. In the hands of the son the property will be ancestral property and the natural or adopted son of that son will take interest in it and be entitled to it by survivorship as joint family property. Where a number of sons inherit their father's self-acquired property, they hold it as joint family property if at the time of his death they are living as members of a joint family.
In Atar Singh v. Thakar Singh it was stated that judgment that unless the lands came “by descent from a lineal male ancestor in the male line, they are not deemed ancestral in Hindu Law.”
Property acquired by a father by adverse possession would not be ancestral property in his hands and his sons would not take interest in it by birth. In a case the Privy Council held that a maternal uncle is not an ancestor, and it has accordingly been held that property inherited from a maternal uncle is not ancestral property.
In Chelikani Venkayyamma v. Venkatar Amanayyamma the property which had descended from the maternal grand-father to his two grandsons. On the death of one of the grandson the widow of the deceased claimed to recover a moiety of the estate from the surviving grandson(Brother). The question was whether the property of the maternal grandfather descended, on the death of his daughter, to her two sons jointly with benefit of survivorship. Their Lordships decided that the estate was governed by the rule of survivorship, and the claim of the widow was, therefore negatived. This decision of the court was criticsed.
In Muhammad Husain Khan v. Babu Kishva Nandan Sahai one G inherited certain property from his maternal grandfather J. Under a will made by G the property which G inherited from his maternal grandfather was to go to his son B and on the death the property was to vest in B's widow, Giri Bala. During the life time of B, in an execution of a money decree against him the said property was sold. B then brought a suit, claiming possession of the property. The validity of the will executed by G is challenged on the ground that the testator had no authority to dispose of the property, as it belonged to a Hindu coparcenary consisting of himself and his son. In their Lordships' opinion the estate which was inherited by G, from his maternal grandfather cannot be held to be ancestral property in which his son had an interest jointly with him. G consequently had full power of disposal over that estate, and the devise made by him in favour of his daughter-in-law could not be challenged by his son or any other person. ON the death of her husband, the devise in her favour came into operation and she became the absolute owner of the village property, as of the remaining estate ; and the sale of that village in execution proceedings against her husband could not adversely affect her title.
Property inherited by a person from collaterals, such as a brother, uncle, etc, or property inherited by him from a female is his separate property. The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. If the coparcener dies without leaving male issue, it passes to his heirs by succession. Accumulations of income of ancestral property, property purchased or acquired out of income proceeds of sale of ancestral property and property purchases out of such proceeds are ancestral property.
In C.N. Arunachala Mudaliar v. C.A. Muruganatha Mudaliar case, Issue was whether property obtained by a gift or will from paternal ancestor are to be regarded as ancestral or self-acquired properties. In this case there were allegation that there were joint property of a family consisting of himself, his father and his brothers and that he was entitled in low to one-third share in the same. Plaintiff and his brother, are both sons are from first wife of their father, who predeceased her husband. The father assert an exclusive title to the joint family property denying any right of his sons. Father claimed that some of the property is his self acquired property and other properties were self-acquired property of his father and he got them under a will executed by his father. In connection to this case the court referred the case of Ram Balwant v. Rani Kishori. In this case the Lordship held that chap.1,Sec.1 verse 47of Mitakshara contained only moral or religious precepts while those in S.5, verses 9 and 10 embodied rules of positive law. It was held that the father of a joint family governed by Mitakshara law has full and uncontrolled powers of disposition over his self acquired immovable property and his male issue could not interfere with these rights in any way. Further in Muddan Gopal v. Ram Buskh it was held that a Mitakashara father is not only competent to sell his self-acquired immovable property to a stranger without the concurrence of his sons. While referring another case Sital v. Madho and Bawa Misser v. Rajah Bishen where it was held that a Mitakshara father can make a gift of his self acquired property to one of his sons to the detriment of another and he can make even an unequal distribution amongst his heirs. Going through above cases court concluded that a property gifted by a father to his son could not become ancestral property in the hands of the donee simply by reason of the fact that the donee got it from his father or ancestor. On reading the will as a whole the court held that it becomes clear that the testator intended the legatees to take the properties in absolute right as their own self-acquisition without being fettered in any way by the rights of their sons and grandsons.
Son takes at his birth in the ancestral property is wholly independent of his father. He does not claim through the father, and, therefore, a transfer is allowed by law, cannot affect the interest of the son in the property. However, the father has a special power of disposal of ancestral property for certain purposes. The father has the power of making within reasonable limits gifts of ancestral movable property without the consent of his sons. A Hindu father of other managing member has power to make a gift within reasonable limits of ancestral immovable property for pious purposes. A member of a joint family cannot dispose of by will a portion of the property even for charitable purposes and even if the portion of the property bears a small proportion to the entire estate.
2 Separate Property
Property acquired in any of the following ways is the separate property of the acquirer; it is called 'self acquired' property. Following are the some examples of Separate Property :-
1 Obstructed Heritage
2 A gift of a small portion of ancestral movable made through affection by a
father to his male issue is his separate property.
3 Property granted by Government to a member of a joint family.
4 Ancestral property lost to the family, and recovered by member without the
assistance of joint family property.
5 Income of separate property
6 Property obtained as his share on partition by a coparcener who has no male
issue
7 Property held by sole surviving Coparcenar when there is no widow in
existence who has power to adopt.
8 Separate earnings of a member of a joint family.
9 Gains of learning.
In Dipo v. Wassan Singh, plaintiff sued to recover possession of the properties which belonged to her brother, who died. She claimed to be the nearest heir. The defendants the sons of paternal uncle contest that they were preferential heirs according to custom, as the whole of the land was ancestral in the hands of the deceased. The court said that properties in the hands of deceased are properties which originally belonged to his ancestors. But deceased was the last male holder of the property and he had no male issue. There was no surviving member of a joint family, be it a descendant or otherwise, who could take the property by survivorship. Property inherited from paternal ancestors is, of course, ancestral property' as regards the male issue of the propositus, but, it is his absolute property and not ancestral property as regards other relations. It was held that the defendants were collaterals of deceased and as regards them the property was not 'ancestral property' and hence the plaintiff was the preferential heir.
posted by Mayank Mehandru | 9:34 PM
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