MODULE I

JOINT HINDU FAMILY

Two main schools of Hindu law

MITAKSHA DAYABHAG
RA HA
 MITHAKSHARA SCHOOL

Vijnaneshwaras commentary on the Yajnavalkya

Smriti
Applies to whole of India except West Bengal &
Assam
 DAYABHAGA SCHOOL

Jimutavahana propounded it
It is digest of all the codes
Applies to West Bengal & Assam
If any conflicting point of law comes up-
Mithakshara is followed
 Difference between Mithakshara & Dayabhaga

Inheritance is based on Inheritance is based on

principle of principle of religious
propinquity = nearness efficacy= conferring
in blood relationships religious benefits
Preference of agnates (pindadana)
over cognates No preference of agnates
over cognates
 2. Birthright & JF

right is given by birth No birthright to sons are

itself to sons(up to 3 given
generations) in JFP Father remains the
At any time this right can ultimate authority over
be exercised & sought for the properties, hence no
partition partition right till then
So, survivorship is All properties devolve
followed upon the inheritance rule
 3. Joint Family Property

Community of ownership Unity of possession is

& unity of possession there , but no community
So, before partition no of ownership
separate property Before partition, its
Interest changes as per separate fixed shares
increase in the number of only, so can be alienated
persons Interest does not change
as shares are fixed
priorly
 TERMS RELATING TO SUCCESSION

Agnates- a relative by blood or adoption wholly

through male family members

Cognates- a relative by blood or adoption wholly

through female family members

Full blood- relationship between children of same

parents and their descendents by such blood
throughout
 Half blood- relationship between children of common
father but by different mothers and their descendents by
such blood throughout

Heir- relative of a deceased person legally entitled to

inherit his property

Intestate- A person who did not bequeath his property

dies intestate, if he bequeathed part of his property he
dies intestate in relation to rest of it

Uterine Children of common mother but by different

fathers and their descendents by such blood throughout
 Hindu Joint family

Unique contribution in Hindu jurisprudence

COMMON ANCESTOR
all male members- their wives
+
unmarried daughters( sometimes widowed) +
illegitimate son
 Characteristics

Perpetual existence
not a corporate entity/juristic person
No members can be included outside the family
unless through adoption/ marriage
Status in HJF is acquired by birth
Married daughters
Children given in adoption
Hindu son marrying a non- Hindu wife
Joint in food, shelter & estate- not conclusive
 Hindu undivided Family & Hindu Joint Family

Only for the purpose of tax & wealth assessment

matters
HUF consists only of a male with his wife & children
But not possible for HJF
It can be consisted of even two widows of
coparceners as long as a male members can be added
 COPARCENARY

It is based on the aspect of who performs the

spiritual ceremonies to the deceased
Basically consists of male members alone- rights are
acquired only through birth/adoption
4 generations of male lineal including a senior most
male member constitute coparcenary
The senior most male member is called Last
Holder
When all the coparceners die leaving only one
behind- sole surviving coparcener
 Women Coparcenary

Prior- No coparcenary- only right

to get maintenance out of the
property
With the Amendment in 2005-
Daughter
No right to seek partition or
survivorship
Widows Limited Interest
devolves upon her(WRPA, 1937)
Illegitimate son
Insane person
 Incidents of coparcenary

1. Interest in the coparcenary property held by them

2. Joint possession & community ownership
3. Its a creation of law & not through any agreements
4. Right of maintenance including expenses for their
marriage
5. Only Fluctuating Interests & no specific or
exclusive interests
6. Right to survivorship
Jayalakshmi v. Gopala, 1995, SC
7. Right to seek partition
8. No alienation of undivided interest
Coparcenary within Coparcenary
 Types of Properties

Classical-
1. Apratibandha Daya /unobstructed heritage
2. Sapratibandha Daya/ obstructed heritage

Basically two-
1. Separate/ Self acquired property
2. Joint Family/ Coparcenary
 Separate Property

Property acquired on ones own without detriment to

the coparcenary property
Property exclusively owned & enjoyed
No one claims any right over the same
It follows testamentary succession, if there is a will
otherwise it follows only intestate succession
right of the heirs spec successionis
Separate property can be pooled into JFP with clear
intention- N.A. to females
 Acquisition of Separate property

1. Property acquired through learning or special skills

- Irrespective off if the coparcenary property was used
for learning purpose
-but if coparcenary property was used for
trade/business, then the gaining will be JFP
2. Property received as prize or scholarship
3. Inheritance by way of unobstructed heritage
4. Property bequeathed but not as JFP
5. Government grants unless not for whole family
6. Adverse possession
7. Salary/remuneration received in job/avocation
8. Property from F,FF,FFF(pre-1956)
9. Any property which is not HJFP
 Joint Family property

It includes various properties from various sources

1. Ancestral Property
inherited from any ancestor/ancestress
- inherited from F, FF, FFF
- inherited from maternal grandfather
- inherited from any other relations
2. Property obtained from partition

Jagir Singh v. Amar Singh, 2004, P&H

 3. Property received in gift

1. Gift of his self acquired property to his son- how is

it gifted, it goes in that way

1.Gift of JFP by Father-Karta; by Karta

-a small portion of movable property
Guruamma v. Mullappa, 1964, SC- gift of IP to
daughter small portion allowed

- within reasonable limits for pious obligation

 4. Property jointly acquired by coparceners

Unless intended otherwise, it will be JFP

It can be co-owned property if acquired together also
If only few acquire the same

5. Income from hereditary profession

6. Property exchange for JFP
7. Property thrown into common stock
8. Property recovered
 Mallesappa v. Mallappa, 1961, SC-

J. Gajendragadhakar- the plea on blending must be

clearly and unequivocally based on clear intention
of the owner of separate property to convert his
property to JFP
Trading Families & Ancestral Family Business
 Difference between HUJ & Firm

Partnership HUJ

Interest is acquired by
Interest is acquired by Family business status
Contract co-parcener are not
Mutual agents agents
Personal as well as - Kartha has sole authority
joint Only Joint liability
Death-dissolves Death does not dissolve
Cannot ask for profits &
Can ask for profits & accounts as a matter of
accounts as a matter of right
right
Dayabhaga Family
 Coparcenary
Unity of possession
Doctrine of survivorship
JFP & SP
Karta
Coparceners power of alienation
 KARTA/MANAGER
I deal with
these !!!!!
 Who?

Father/ Senior most male member

As much as he wants , stay in the position
Only one karta exists
Junior member in coparcenary can be karta-
- senior member not available
- karta requlishes his right expressly/impliedly
- Absence of actual karta certain circumstances
-whereabouts of father is not known/ is in a
place from where he couldnt come
Nopany Investments(Pvt) Ltd v.Santokh Singh, 2008, SC
 Female Karta

Not allowed- CIT v. Seth

Govind Ram, 1966
But AP, TN & Karnataka
allowed females to be Karta
after 1985
After 2005- Females are
allowed to be Karta
 Position of Karta

Sui Generis Position

Unlimited powers unlike the other members
Fiduciary relationship with all the members, but not
their trustee/agent
Liable to maintain all members including the
marriage of unmarried daughters
He is the sole representative of the family
Any decree passed against him binds his whole
family
Powers of Karta

1. Right to spend- spend for family

like a trustee (beneficial)
- Discretion to spend money
2. Right to Income- all incomes
reach karta- he allots
3. Power to represent
4. Power to contract debts- all
members are bound
Amrit sagar gupta v. Sudesh Behari lal, SC, 1969

Managing member has the right to represent the

entire family in all transactions relating to the
family, whether they are in connection with the IP
or otherwise
Krishnamurthi v. Chidhambaram, 1946, Mad HC
Any member of HJF whether minor/adult cannot sue
to set aside a decree lawfully passed against his
father as manager of the family on the ground that
he was grossly negligent in the conduct of the suit.
Family Arrangements
Its not any transfer of property /creation of
interest

Ha haYou
neither have any
interest!!!!!
It can be oral, written or inferred from context
It binds all the members including minors &
unborn
Needs to be fairly done without fraud & not
depriving any members rights
It can be carried out in a will but not to unborn

I hereby
bequeath my
property ..
 ALIENATION

Whole of Manager/
adult
coparceners Karta

Sole
Father surviving
coparcener
 I) Alienation by Father

Alienation
1. Gift of ancestral IP & MP to an extend
2. Sell/mortgage ancestral IP/MP payment of
antecedent debts not illegally/immorally incurred
Movable property- limited portion to anyone out
of Gift of Affection cannot do so through will
Immovable property- limited portion to son for
pious obligation- cannot do so through will
- Allowed to daughters after Guramma Case
 Antecedent debt

Any debt which is antecedent in time

It can be with different creditors
Ramkaran Thakur v. Baldeo Thakur, 1938, Pat HC

Immoral Debt
- BOP is upon alienee to prove the antecedent debt
- BOP upon sons to prove that it was immoral
 II) Manager/Karta

No power to alienate to Karta/any other coparcener

Vijnenshwaras Exceptions:
1. Apatkale time of distress
2. Kutumbarthe - for familys sake
3. Dharamarthe - performance of indispensible duties
The judicial interpretations have changed the same into-
1. Legal Necessity
2. Benefit of Estate
3. Performance of Indispensible duty
Hunooman Persaud v. Mussumat Babooee, 1856,
PC

The power of Manager who manages an infants

heirs estate is limited & qualified power exercisable
only in necessity/benefit of interest

- Alienation can be done by Karta with the consent of

all the coparceners for any other reason
- Alienation by Karta without legal necessity/such
situation voidable
(Raghubanchmani v. Ambica Prasad, 1971, SC)
1. Legal Necessity

Familys need- alienation

would suffice it
Examples-
1. Payment of government
tax/rents
2. Maintenance of coparceners
3. Marriage of daughters &
coparceners
4. Necessary family
funerals/family ceremonies
5. Litigations upon the estate
6. Payment of debts
Malik Md Ibrahim v. Harakh, 1947, Pat HC
 2. Benefit of Estate

Any thing done for the benefit of the family as

prudent owner does & not in defensive nature
Balmukund v. Kamla Wati, 1964, SC

No precise definition can be given, but preservation

of estate from extinction, defense against hostile
litigations, protection of portions from
deteriorations, etc
Palaniappa v. Deivasikamony, 1917, PC
 3.Indispensible duties

Performance of pious
obligations / religious
ceremonies
To any extend it can be done
For religious endowments
also
Gangi v. Tammu. 1927, PC
Small portion of JFP-may be
allotted for religious charity
III) RIGHTS OF COPARCENERS
 Judicial interpretation only

Deen Dayal v. Jugdip Narain, 1877,PC

the purchaser of an undivided property at an
execution sale during the life of the debtor for his
separate debt does acquire his share in such
property with the power of ascertaining and
realising it by a partition

i.e., Existence of a decree against him for the money

debt
 Gifting by coparceners

Even gifts made by coparceners to their extend of

interest is invalid
Radha Kant Pal v. Nazma Begum, 1918, PC
He cannot devise his rights through wills
It can be done only with the consent of all other
coparceners
Only Bombay, madras , MP HC allow alienating the
undivided interest through sale/Mortgage without
the consent
 Relinquish

Any coparcener can relinquish his interest in the

HJFP
By making renunciation as consideration, a
coparcener can very well gift any property
Gopal Krishna v. General Public, 2007, P & H
No partition
His sons/grandsons, doesnt have any right- if out of
HJF
It must be made for entire shares
 IV) SOLE SURVIVING COPARCENER

He has sole right to the property as SP unless a child

is born after him/is existing
A subsequent adoption is not going to affect this
right
He cannot alienate any interest of widow who is the
heir to her Hs property
 Rights of Alienee

1. Right of partition (on Equity)

Alienee does not acquires any interest in the JFP to

act like a tenant in-common
But only a right to stand in place of the vendors &
claim whatever share is allotted in partition(equity)
His share = share of the coparcener on the date of
alienation, no survivorship rule
 Partition- specific/ general

Mad HC & Cal HC &

Bom HC All HC
 2. No right to get mesne profits

Sidheswar v. Bhubheshwar, 1954, SC

- Purchaser in an auction sale, not entitled- since he is
entitled to property only after the actual partition

3. Alienee takes the property subject to equities

- Takes the property subject to vendors liabilities
- If alienation is itself discharge the debts, no need to
be limited
- Mortgage- only upon the properties given to the
Mortgagor
 4. Right of Joint Possession

Madras HC- allowed in court/private sale

Cal & All HC- allowed only in private sale
- but other coparceners can go for eviction
in such cases where already possession has
been taken(ie. In court sale)
Bombay HC- not at all allowed & remedy is only
partition
- in case of possession already taken-
either sue for recovery/ joint possession
like tenant-in -common
 Remedies of coparceners

Madras, MP HC, All HC- alienated property with

or w/o dispossession can be set aside except for the
extend of the transferors (coparcener) share
Other schools- set aside in toto
1.RIGHT TO 2. RIGHT TO
CHALLENGE
MinorsALIENATION
can challenge their fathers OBSTRUCT
alienation after
ALIENATION
majority if it was obtained without the consent of
the court
Shiv kumar v. Mool Chand, 1972, P&H- when karta
tries to alienate for any other ground than allowed ,
without the consent- right to sue for injunction
 Sunil Kumar v. Ram Prakash, SC, 1988

Permanent Injunction against alienation by Karta-

N.A. as suit to challenge alienation is allowed

Limitation:
- 12 years alienation by Father/Karta
- 12 years- recovery of possession of IP alienated
by other coparceners
- 6 years- declaration suit
 Ramkishore v. Jainarayan,1913, PC

Minors & unborn children can challenge the same-

alienation was invalid
 3. Right to Mesne Profits

Only from the date of granting the objection of

alienation & not from the date of sale/Mortgage

Agreement by coparcener against the alienation of

his shares is legally valid & enforceable - but not
binding in execution sale /sale without the same to
the alienee
 PIOUS OBLIGATION

Changed with the 2005 Amendment Act

No obligation exist except for the already existing
ones up to 2005
Debts are private debts of father, coparcener or Karta
DEBTS
1. Liability Of Separate Property For Debts
- now all the sons, grandsons, great grandsons
are bound to pay but not personally, only to the
extend in HJFP
 2. Undivided coparcener's interest when liable
for debts

Undivided coparcener's interest can be attached in

his life time in execution of a decree against his
personal debts
it is not applicable if coparcener dies after the suit &
before the decree is made or after the decree, but
before the execution
(HJFP + S P-Rs.5000)
 3. Liability of JFP for fathers Debts

S.6(4) of HSA- abolished the same

Only applicable for Antecedent Debt which are not
Immoral
It is applicable whether father is dead/alive but not after
partition but only for pre-partition debts
For Family sake, any alienation by father as Karta- needs
to be fulfilled by all the sons & grandsons
Otherwise, only son & grandson has the obligation-
religion & piety
Prasad V. Govindswami Mudaliar, 1982, SC- Nephew:
no liability to pay Uncles debts
 This obligation not personal unless agreed
It exist as long as it exist against the father
Pannalal v. Narini , 1952, SC- Liability of the son
enforceable only before partition & not after
partition
Wife- No pious obligation
Partition done to avoid the execution of previous
debts attachment, will not be effective
 Nature of the debt- Antecedent Debt

Brij Narayan v. Mangala Prasad, 1924, PC-

Lord Dunedin- Antecedent in fact as well as in
time
- Any debt truly independent & not the part of the
transaction that is challenged
- The debts should be disassociated in time i.e.,
alienation different from debt
- Example: A security bond for payment of Kuri chit is
not an antecedent debt
Avyavaharika Debt
 No accurate definition- BOP on Sons

Maynes enumeration upon these debts are-

1. Debts due to spirituous liquor
2. Debts due to lust
3. Debts due to gambling
4. Unpaid fines/tolls
5. Debts unpaid which were contracted without
consideration & upon wrath
6. Commercial debts
7. Suretyship
Loganathan v. Ponnuswami,1969, Mad HC

Father dishonestly defrauded few minors of the

money, he collected on their behalf & borrowed few
money to defend the case debt for immoral
purpose
Time barred debt is not avyavaharika
PARTITION
 Meaning

Bringing the JF Status to end- it would be a group of

distinctive small families
2 things happen-
1. disintegration of joint status
2. Actual division of the property
according to the shares mentioned known
as metes & bounds
It can be under agreements, arbitration or suit
 A) SUBJECT MATTER OF PARTITION

Only Ancestral Property/ Coparcenary Property no

SP
 Ashanullah v. Kali, 1884, Cal HC

If property can be partitioned without destroying the

intrinsic value of the whole property or of the
shares such partition ought to be made. If on the
contrary, no partition can be made without
destroying the intrinsic value, a money
compensation should be given instead of the shares
which would fall to the plaintiff by partition
How to calculate the same?
 B) PERSONS WHO ARE ENTITLED TO
SHARES

Only Coparceners- now

includes daughters also
They have right to demand &
sue for partition
Fathers mother, wife &
grandmother- entitled to
shares
1.S,SS,SSS
Son begotten before partition & born after

pregnancy Set aside till his birth

was If not, a share should
be set aside
known

Pregnancy Partition can be

was reopened
unknown
Son begotten after partition & born after

Father Inherits share -

survivorship as a
made member in coparcenary
reservation Gets the SP

Father Partition can be

reopened
made no Applicable only if F & S
reservation
ADOPTED SON
ILLEGITIMATE SON
2. Daughters 3. Minors
4. Wife 5. Purchaser/Alienee
6. Grandmother 7. Widow mother
C. HOW IS PARTITION EFFECTED
 1.Severance of status

Any adult can sever his/her interest by an

unequivocal communication of intention of the
partition
In Raghvamma v. Chenchamma, 1964,SC
unequivocal communication intimation,
indication or representation of intention, the
manifestation of which depends upon the situation
Motive/Reason for the same irrelevant
Intention must be conscious & informed and is not
mere separation from the family
 Girjanandni v. Bijendra, 1967, SC

Whenever a coparcener separates, there is no

presumption that others want to remain joint, but
the decision to remain joint or get reunited, may be
express or implied in his conduct

COMMUNICATION
MUST
 Modes of Partition

1. Partition by Father during his lifetime

- fairly, otherwise set aside
- partitions F & S as well as S & S
- Not possible through Wills w/o consent of coparceners
2. Partition by suit
- It is proof of severance
- From the date of filing the suit- effective
- Except for an agreement to revoke the same, the withdrawal
of suit doesnt give back the joint status
- If the suit is set aside for the benefit of minor- no partition
 3. Partition by Agreement

It should be specifying the shares to be allotted with

immediate effect
If not , its indication of severance of status
From the date of signing its effective
Need not be written
If there is division of shares, compulsory- Nani Bai v.Gita
Bai, 1958,SC
4. Partition by Arbitration
- Agreement to the same-appoint arbitrators
- Their decision final
- Effective from date of award/agreement signed
 5.Partition By conduct

Conduct explicit & definite- depends upon facts &

circumstances
like division in payment of tax/rents, division in receiving of
incomes , conversion into other religion, etc
Partial Partition
 PARTIAL AS TO
PROPERTY
HJF status continues for
other properties alone
Such property will be
held as tenant-in-
common
It can due to jurisdiction,
no partition possible or
statute or custom
PARTIAL AS TO
PERSONS
Coparceners separating
but no separation inter
se
No need of any
agreement to prove the
same
JF status continues for
the other members who
want to continue as JF
 D. ALLOTMENT OF SHARES

Putrabhaga & Patnibhaga- 2nd one obselete

Jyeshtabhaga- obselete

RULES RELATING TO METES &

BOUNDS
1. If Fathers & Sons Equal shares to all in HJFP
2. If coparcenary between brothers only- Equal
3. Each branch takes shares per stripes(i.e., according to
stock)as regards every other branch, but members of
each branch takes it per capita as regards each other
4. Coparceners interest devolves by survivorship so
for deceased male coparcener, their share will be
devolving to the his male descendent within the
coparcenary
E. Reopening of partition
 1. Rights of sons

Sons born after or adopted after can reopen

Adopted sons without justifying necessity, if
widows share were alienated can make it reopen
If reopened- to be done fairly
It does not affect the alienations done prior to his
adoption
2. Fraud
Consent of the coparceners were obtained through
fraud
 3. Mistake

property was mistaken /not all partitioned

4. Minors reopening partition
Ratnam Chettiar v. Kuppuswami, 1976,SC
- if it was detrimental to the interest of minors
5. Absentee Coparceners
F.Reunion
 Only between the parties to the partition
Only between F& S, Brothers & Paternal Uncles &
Nephews & not between any other relationships
No need for any written agreement, even oral is
agreement
Agreement expressed / conduct - reunite in interest
& estate- Bhagwan Dayal v. Reoti Devi, SC, 1962
Minors not eligible to reunite