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Case Briefs (Hindu Joint Family), Study notes of Family Law

O.P. Jindal Global UniversityFamily Law

Case briefs for a few topics under Family Law 2

What you will learn

  • What are the implications of a father gifting property to his married daughters from the joint Hindu family property?
  • Under what circumstances can a Hindu joint family sell or mortgage property for legal necessity?
  • Can a younger brother act as Karta in a Hindu joint family?
  • What is the difference between ancestral and separate property in Hindu law?

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2018/2019

Uploaded on 05/15/2019

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CWT v. Late R Sridharan & CWT v. Rosa Maria Steinbicher Sridharan (1976) 4 SCC 489
R.Sridharan (H) Rosa Maria (Christian)
Nicolas Sundaram (H)
•Issue: Whether a son born out of a wedding of a Hindu man and a Christian mother could be
said to be a Hindu for the purposes of forming a HUF with the father for tax purposes?
• Can a son of a Hindu father and mother married under the Special marriage act be considered
as a member of his father’s joint family?
FACTS
•R.Sridharan, his father and his brothers constituted a joint family. Partition took place in
the joint family and he was allotted some joint family shares and some companies.
• Sridharan married a Christian woman- Rosa Maria under the SMA and a son Nicolas
Sundaram was born to them in 1957.
• Sridharan was taxed as an individual for the year 1957-58 and 1958-59. For AY 1959-60,
60-61 and 61-62, he claimed to be assessed in the status of a member of a HUF consisting of
him and his son.
• He based his claim on the fact that after partition, the partition share is ancestral qua his
male issues and Nicolas Sunderam was a Hindu.
• The status was refused keeping in mind Section 21 of the SMA- succession has to be
governed by ISA.
RATIO
• Legitimate children of a Hindu father by a Christian mother who are brought up as Hindus
would be governed by Hindu Law. Thus, son of a Hindu father and mother married under the
Special marriage act will be a member of his father’s joint family
HOLDING
• The court held that “in the present case, Sridharan is a Hindu by birth and was lawfully
married to Rosa Maria Steinbchler. Even after his marriage, he did not renounce Hinduism
but continued to profess that religion. Having been begotten out of the aforesaid valid and
lawful wedlock, Nicolas Sundaram is a legitimate child and lineal descendant of Sridharan.
There is no material on the record to show that Nicolas Sundaram was not brought up
as a Hindu or that he did not conform to the habits and usages of Hinduism or that he
was not recognised as a Hindu by the society surrounding him or that he became a
convert to another faith. Sridharan has also unequivocally acknowledged and expressly
declared that he and his son, Nicolas Sundaram formed a Hindu undivided family.”
CRITIQUE
• The correctness of the decision is doubtful, as in a joint family the father and son constitute a
coparcenary. In the coparcenary, the son has a right by birth. As being Hindu is an essential
qualification to be a member of the joint family, the son of a Hindu father by a Christian
mother need not be Hindu in all cases. His religion cannot be determined at the time of his
birth but is dependent on his being brought up as a Hindu. But the membership of a son in the
joint family is to be determined at the time of birth.
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CWT v. Late R Sridharan & CWT v. Rosa Maria Steinbicher Sridharan (1976) 4 SCC 489

R.Sridharan (H) Rosa Maria (Christian)

Nicolas Sundaram (H)

  • Issue: Whether a son born out of a wedding of a Hindu man and a Christian mother could be said to be a Hindu for the purposes of forming a HUF with the father for tax purposes?
  • Can a son of a Hindu father and mother married under the Special marriage act be considered as a member of his father’s joint family?

FACTS

  • R.Sridharan , his father and his brothers constituted a joint family. Partition took place in the joint family and he was allotted some joint family shares and some companies.
  • Sridharan married a Christian woman- Rosa Maria under the SMA and a son Nicolas Sundaram was born to them in 1957.
  • Sridharan was taxed as an individual for the year 1957-58 and 1958-59. F or AY 1959-60, 60-61 and 61-62, he claimed to be assessed in the status of a member of a HUF consisting of him and his son.
  • He based his claim on the fact that after partition, the partition share is ancestral qua his male issues and Nicolas Sunderam was a Hindu.
  • The status was refused keeping in mind Section 21 of the SMA- succession has to be governed by ISA.

RATIO

  • Legitimate children of a Hindu father by a Christian mother who are brought up as Hindus would be governed by Hindu Law. Thus, son of a Hindu father and mother married under the Special marriage act will be a member of his father’s joint family

HOLDING

  • The court held that “in the present case, Sridharan is a Hindu by birth and was lawfully married to Rosa Maria Steinbchler. Even after his marriage, he did not renounce Hinduism but continued to profess that religion. Having been begotten out of the aforesaid valid and lawful wedlock, Nicolas Sundaram is a legitimate child and lineal descendant of Sridharan. There is no material on the record to show that Nicolas Sundaram was not brought up as a Hindu or that he did not conform to the habits and usages of Hinduism or that he was not recognised as a Hindu by the society surrounding him or that he became a convert to another faith. Sridharan has also unequivocally acknowledged and expressly declared that he and his son, Nicolas Sundaram formed a Hindu undivided family.”

CRITIQUE

  • The correctness of the decision is doubtful, as in a joint family the father and son constitute a coparcenary. In the coparcenary, the son has a right by birth. As being Hindu is an essential qualification to be a member of the joint family, the son of a Hindu father by a Christian mother need not be Hindu in all cases. His religion cannot be determined at the time of his birth but is dependent on his being brought up as a Hindu. But the membership of a son in the joint family is to be determined at the time of birth.
  1. CIT v Lakshminaryan, AIR 1935 Bom. 412
  • Facts: A joint family consisted of father, mother and son and his wife. Father died in 1929, whereafter the family consisted of the son, his wife and his mother. The issue arose out of assessment of son since he would be allowed a large exemption when taxed as member of Hindu undivided Family than as an individual.
  • Issue: Whether the family continues to be joint family after the death of the father? What is the nature of property in question? - Whether the income received by a sole surviving male member of an HUF can be taxed in the hands of such male member as his own individual income, should it be taxed as the income of a HUF for the purposes of assessment to super tax under section 55 of IT Act.

RATIO & HOLDING

  • With the death of father, the son survived as the sole surviving coparcener. However, because there is no coparcener other than him, it does not follow there is no Hindu Undivided Family. The rights of the female members and other surviving members of the family continue to exist and the possession of family property by sole surviving coparcener is subject to these rights of the other surviving members of the family. Thus, Joint Family may continue at the instance of a male member (the son) and other female members (mother and his wife) who have a right of maintenance.
  • The family is considered to be joint unless and until proved to the contrary. The property was ancestral. But there is a distinction between HUF and coparcenary. For the purposes of taxation, what is taken into account is the existence of a Hindu Undivided Family and not the existence of coparcenary. Thus, the family continues to be Joint Family and income of the assesse should be taxed as the income of the Hindu undivided Family.
  • The Court decided that income derived because of survivorship in the hands of the sole surviving coparcener would be taken as the income of the HUF and not his individual income.
  1. Muhammad Husain Khan v. Babu Kishva Nandan Sahai, AIR 1937 PC 233
  • A(Ganesh Prasad)
  • Creditor X S W
  • (Bindeshri Prasad)
  • Issue: What is ancestral property? Whether property inherited from a maternal grandfather would constitute grandson’s separate property?

FACTS

  • In this case, one Ganesh Prasad (A) was the proprietor of a large and valuable estate. He died on 10th of May leaving a surviving son- Bindeshri Prasad (S).
  • Murugantha(P) S
  • Issue : Nature of property- whether property received by the son by way of gift/ will is ancestral or separate in nature?

FACTS

  • The defendant No.1 (D-1), who is the father of the plaintiff acquire some property by way of his father’s will. D-1 after the death of the plaintiff’s mother married Defendant No.3. It was alleged by the plaintiff that after the second marriage of his father, relationship between him and his father deteriorated.
  • The plaintiff alleged that the property that D-1 got by way of will was ancestral in nature, therefore giving him a right by birth in that property.
  • The plaintiff asked for specific allotment on partition of his one-third share in the properties on the allegation that they were the joint properties of a family consisting of himself, his father (defendant No. 1) and his brother (defendant No. 2).
  • The properties in respect of which the plaintiff claims partition are: agricultural land, one residential house, Jewellery, furniture and brass utensils, a sum of about Rs. 15,000 deposited in the name of father in the Erode Urban Bank Limited.
  • The father denied that there was any joint family property to which the plaintiff could lay a claim.
  • His case was that lands as well as the house property were the self acquired properties of his father and he got them under a will executed by the latter as early as in the year 1912.
  • The other items of immovable property as well as the cash, furniture and utensils were his own acquisitions in which the sons had no interest whatsoever. As regards the jewels mentioned in the plaint, it was said that only a few of them existed and they belonged exclusively to his second wife.
  • The will of his father under which defendant No. 1 got the properties is dated the 6th of June,
    1. The will is a simple document. It recites that the testator is aged 65 and his properties are all his own which he acquire from no nucleus of ancestral fund. He had three sons, the eldest of whom was defendant No. 1. In substance what the will provides is that after his death, the A Schedule properties would go to his eldest son , the B Schedule properties to his second son and the properties described in Schedule C shall be taken by the youngest.
  • The sons are to enjoy the properties allotted to them with absolute rights and with powers of alienation such as gift, exchange, sale, etc. from son to grandson hereditarily. The testator, it seems, had already given certain properties to the wives of his two brothers and to his own wife also. They were to enjoy these properties during the terms of their natural lives and after their death, they would vest in one or the other of his sons, as indicated in the will. The D Schedule property was apart for the marriage expenses of his third son and an unmarried daughter. Authority was given to his wife to sell this property to defray the marriage expenses with its sale proceeds.

RATIO

  • A Mitakshara father/a person has absolute right of disposition over his self-acquired property to which no exception can be taken by his male descendants and the nature of the property would depend upon the testator’s intentions as expressed in the will..
  • In the ancestral or grandfather's property in the hands of the father, the son has equal rights with his father; while in the self-acquired property of the father, his rights are unequal by reason of the father having an independent power over or predominant interest in the same.
  • It is obvious, however, that the son can assert this equal right with the father only when the grandfather's property has devolved upon his father and has become ancestral property in his hands. The property of the grandfather can normally vest in the father as ancestral property if and when the father inherits such property if and when the father inherits such property on the death of the grandfather or receives it, by partition made by the grandfather himself during his lifetime. On both these occasions the grandfather's property comes to the father by virtue of the latter's legal right as a son or descendant of the former and consequently it becomes ancestral property in his hands.
  • But when the father obtains the grandfather's property by way of gift , he receives it not because he is a son or has any legal right to such property but because his father chose to bestow a favor on him which he could have bestowed on any other person as well.
  • Unless an intention appears from the language of the Will, that it should be treated as ancestral property in the hands of the son, it would be son’s separate property.
  • Where the intention is not clear, the contents of the Will and the class of beneficiaries, will be determining tests.
  • What has to be seen is, whether the testator had made a distribution that is identical to or close to what would have been the case if the property would have devolved on the family members through inheritance and not through the Will.
  • In such cases, it has to be presumed that the father did not want to deviate from the general inheritance laws and the purpose of his making the Will was to avoid a dispute with respect to its distribution, after his death.

ANANLYSIS

  • But what is really material for our present purpose is his intention regarding the kind of interest which his sons were to take in the properties devised to them. Here the will is perfectly explicit and it expressly vests the sons with absolute rights with full powers of alienation by way of sale, gift and exchange. There is no indication in the will that the properties bequeathed were to be held by the sons for their families or male issues and although the will mentions various other relations, no reference is made to sons' sons at all. This indicates that the testator desired that his sons should have full ownership in the properties bequeathed to them and he was content to leave entirely to his sons the care of their own families and children.
  • Dominant intention of the testator was to make suitable provisions for those of his near relations whom he considered to have claims upon his affection and bounty. He did not want simply to make a division of his property amongst his heirs in the same way as they themselves would have done after his death, with a view to avoid disputes in the future. Had the testator contemplated a partition as is contemplated by Hindu law, he would certainly have given his wife a share equal to that of a son and a quarter share to his unmarried daughter. His brothers' wives would not then come into the picture and there could be no question of his wife being authorized to sell a property to defray the marriage expenses of his unmarried son and daughter. The testator certainly wanted to make a distribution of his properties in a way different from what would take place in case of intestacy.

HOLDING

vi. Who was away in a remote place due to compelling circumstances and his return within a reasonable time was unlikely or not anticipated.

  • The Court dismissed the contention of the tenant and observed that it was not open for the tenant to raise such a kind of objection with respect to the maintainability of the suit at the instance of the younger brother of the Karta who was realizing the rent from the tenant and the tenant is now stopped from raising any such question, and the suit was maintainable at the instance of the younger brother claiming himself to be the Karta of the joint family despite the fact that he was not the senior most male member of the family.
  • The Court held that where the Karta of the joint family is away in a foreign land for a long time and his return within a short period is unlikely and due to his absence he cannot look after the affairs of the joint family, a younger member of the coparcenary with the consent of all the members of the family can act as Karta of the family. He is also empowered to enter into transactions on behalf of the joint family, such as execution of the lease or filing a suit for eviction of the tenant inducted into the joint family premises.
  • Therefore Jasraj had the power to act as the Karta of the family and file a suit for eviction.
  1. Dev Kishan v. Ram Kishan, AIR 2002 Raj. 370

FACTS

  • The Karta effected a mortgage, a sub mortgage and a sale of two houses belonging to the joint family, worth around Rs. 8000 to 9000, for a consideration of Rs. 400 to 900, which according to him, were to be utilized for the marriage of his three minor children.
  • The sale deed was executed on the day the son was getting married.
  • Issue: Whether alienation of joint family property could be done for marriage of minor daughter as legal necessity?

RATIO & HOLDING

  • The transfers were held void as opposed to public policy, in view of the Child marriage Restraint act, 1929.
  • The Court held that even if the amount of money was actually spent on the marriage of such children, who were in the age group of 8-12 years, it cannot be termed as legal necessity.
  • Secondly, the members of the family were earning and there was no need to sell the family property to raise the money.
  • Thirdly, the transfer was grossly undervalued and if there was a need of money, the transfers should have been effected for an adequate consideration.

SECOND ISSUE

  • Whether the further debts incurred and sale of mortgaged properties effected by the Karta for satisfying the loan taken on earlier mortgages for the marriage of a minor member should be considered to have been incurred for legal necessity of satisfying antecedent debt?
  • The “antecedent debt” means antecedent in fact as well as in time i.e., the debt must be truly independent and not part of the transaction impeached.
  • A borrowing made on the occasion of the grant of mortgage is not an antecedent debt.
  • The father of joint Hindu family may sell or mortgage the joint family property including the son’s interest therein to discharge a debt contracted by him for his own personal benefit, such alienation binds the sons provided-
  • (a) the debt was antecedent to the alienation, and
  • (b) it was not incurred for an immoral purpose.
  • The debt taken for the purpose of marrying minor children, which were not lawful, was not a lawful debt.
  • Thus the present and subsequent transaction of the mortgage and sale cannot be regarded as transaction for payment of antecedent debt.

RATIO

  • Debt incurred for the marriage of a minor being unlawful and against the public policy cannot be a legal necessity. The antecedent debt to pay off which an alienation of the joint property is made must be antecedent in fact as in time, i.e., the debt must be truly independent and no part of the transaction impeached.
  1. Balmukand v..Kamlawati (AIR 1964 SC 1385)

FACTS

  • A Hindu Joint family owned a small portion of a big plot of land owned by the alinee, who approached the Karta (Pindidas) for the purchase of the joint family land, and offered him a higher consideration than the market value.
  • Initially, accepting his offer, the Karta accepted the earnest money, but he alter failed to execute the sale deed. He entered into an agreement for the sale of 3/20th share of land in certain fields.
  • The alinee filed a suit for specific performance of the contract. He was the owner of the 17/20th share and hence wanted to buy the rest of the 3/20th share
  • The Karta contended that he was not empowered to sell the land as it was neither for legal necessity nor for benefit of the estate.
  • The family was in affluent circumstances and there was nothing in evidence to show that the Karta was having any difficulty in managing the property or that the family was incurring a loss in retaining that property. Nor was there any suggestion that he wanted to invest the sale proceeds in a profitable manner.
  • Karta (Pindidas) died during the pendency of appeal before the HC.
  • Suit was resisted by all the defendants (coparceners).
  • They said that the transaction was not binding on them as the sale was not for the benefit of the family not was there any necessity for sale.
  • Issue: Whether the opposition by adult coparceners is a decisive factor to assess benefit of estate?

RATIO & HOLDING

  • The Supreme Court observed that there was nothing to suggest that any sale was being contemplated by any consideration of prudence.

daughter at the time of her marriage or even long after her marriage. However, the extended meaning has not been extended to the gift made in favour of other female members of the family.

  • Question as to whether a particular gift is within the reasonable limit or not has to be judged according to the status of the family at the time of making the gift, the extend and total value of the property owned by the family and the extent and value of the gifted property and so on. Simply because the gifted property is a house, it cannot be held that the gift made was not within the reasonable limits. However, if, on facts, it is found that the gift was not within reasonable limits, such a gift would not be upheld. No hard and fast rule prescribing quantitative limits of such a gift can be laid down. The answer to such a question would vary from family to family.
  • It was for the respondent to plead and prove that the gift made by the father was excessive or unreasonable, keeping in view, the total holding of the family. In the absence of any pleadings or proof on these points, it cannot be held that the gift made in this case was not within the reasonable limits of the property held by the family. The respondent has failed to plead and prove that the gift made was to an unreasonable extend, keeping in view the total holding of the family.

CONCLUSION

  • The total property held by the family was 3 acres. 12 cents would be approximately 1/26th^ share of the total holding. The share of each daughter would come to 1/52 nd^ or 1/26th^ share of the total holding of the family, which cannot be held to be either unreasonable or excessive under any circumstances.
  • Further, the finding of the trial court and the high court that the respondent was taken to the Sub-Registrar’s office to witness a sale deed by his sons-in-law whereas deed of settlement/ gift was got executed from him, was on misreading of evidence and being perverse, the same cannot be sustained in law. Appeal allowed.
  1. Sunil Kumar v. Ram Prakash (1988) 2 SCC 77

FACTS

  • The defendant, Ram Prakash, as karta of Hindu joint family, executed an agreement to sell certain house property and received a sum as earnest money on the date of the agreement.
  • Ram Prakash later refused to execute a sale deed. Thus, a suit was filed for specific performance of the agreement to sell.
  • Sons of Ram Prakash made an application for being impeded in this suit which was dismissed as they were held to be unnecessary parties to the suit.
  • Thereafter the three sons of defendant instituted a suit for permanent injunction against their father to restrain him from alienating the house property stating inter alia that the said house was JFP and the proposed sale was neither for legal necessity nor for the benefit of the joint family estate, nor it was an act of good management to sell the same without the consent of the plaintiffs.
  • Thus the relief sought for is to restrain by permanent injunction the karta of the Hindu joint family from alienating the house property in question.

ISSUES

  • Whether interference of the court (through a suit for permanent injunction) could be sought by a coparcener to restrain the karta of Hindu joint family from alienating coparcenary property?
  • A coparcener has as much interest as that of karta in the coparcenary property. The right of coparcener in respect of his share in the ancestral property would remain unimpaired, if the alienation is not for the legal necessity or for the benefit of the estate. When these two rights are preserved to a coparcener, why should he not prevent the karta from dissipating the ancestral property by moving the court? Why should he vainly wait till the purchaser gets title to the property?

ANALYSIS & HOLDING

  • Right to obstruct alienation could not be considered as incidental to the right to challenge alienation:
  • No doubt the law confers a right on the coparcener to challenge the alienation made by karta, but that right is not inclusive of the right to obstruct alienation. These are two distinct rights. One is the right to claim a share in the joint family estate free from unnecessary and unwanted encumbrance. The other is a right to interfere with the act of management of the joint family affairs. The coparcener cannot claim the latter right and indeed, he is not entitled to it.
  • Suit for permanent injunction is not maintainable:
  • In a suit for permanent injunction under Section 38 of the specific Relief Act by a coparcener against the father or manager of the joint Hindu family property restraining the karta from alienating the coparcenary property, an injunction cannot be granted as the coparcener has got equally efficacious remedy to get the sale set aside and recover possession of the property.
  • The coparcener has adequate remedy to impeach the alienation made by the karta in a suit subsequent to the completion of the sale. If it is held that a suit for permanent injunction would be competent the result would be that each time the manager or the karta wants to sell property, the coparcener would file a suit which may take number of years for its disposal. The legal necessity or the purpose of the proposed sale which may be pressing and urgent nature, would in most cases be frustrated by the time the suit is disposed off.
  • Legally speaking, unless the alienation in fact is completed there would be no cause of action for any coparcener to maintain a suit because the right is only to challenge the alienation made and there is no right recognized in law to maintain a suit to prevent the proposed sale.
  • The principle that an injunction can be granted for preventing waste by a manger or Karta obviously would not be applicable to such a suit because the proposed alienation for an alleged need or the benefit of the estate cannot be said to be an act of waste or ouster an injunction may be granted against the manager of the Hindu joint family at the instance of the coparcener.
  • But nonetheless a blanket injunction restraining permanently from alienating the property of the Hindu joint family even in the case of legal necessity, cannot be granted.

RATIO

  • Where the karta is contemplating the transfer of the joint family property for a permitted purpose, as ascertained by him, the coparceners cannot prevent him from transferring his property by seeking a temporary or permanent injunction from the court. Managing the joint family property is one of the inherent powers of the karta and even the court is not