INTRODUCTION

It is generally believed that ancient Hindu law was particularly harsh towards women and denied

them sexual and economic freedom. In support of this premise, it is emphasized that Manu, the

first lawgiver stipulated; "A women must be dependent upon her father in childhood, upon her

husband in youth and upon her sons in old age. She should never be free." It is also believed that

the modernity ushered in during the colonial era helped loosen out this strict sexual control by

granting women the right of property ownership. The Smrities and Commentaries, with their

roots in a feudal society of agrarian landholdings, prescribed a patriarchal family structure within

which women's right to property was constrained.

Under Hindu Law, the law of property has a close relationship with the composition of family.

HINDU JOINT FAMILY UNDER MITAKSHARA LAW

The Hindu joint family is a normal condition of the Hindu society. Its origin can be traced to the

ancient partriarchal system where the patriarch or the head of the family was the unquestioned

ruler, laying down norms for the members of his family to follow, obeyed by everyone in his

family and having an unparallel control over their lives and properties. Therefore, under Hindu

law the joint family system came first in historical order and the individual recognition of a

person distinct from the family thereafter. The ancient system generally treated the property

acquired by the member of the family as family property or the joint property of the family with

family members having one or the other right over it. With gradual transformation of the society

and recognition of the members of the family as independent in their own right, concept of

separate property and rules for its inheritance were developed. This dual property system, though

considerably diluted, has survived the lashes of time, the judicial and legislative onslaught and

the Hindu society still recognizes the joint family and joint family property as unique entities

having no similar concept alive elsewhere in the world.

Constitution of Hindu Joint Family

The institution of a Hindu Joint Family is peculiar to the Hindu jurisprudence and has its origin

in ancient orthodox texts and writings of Smritikars etc. Though, it originated in the propagation

of the theory of despotism and autocracy in the father, yet by efflux of time, such a concept

considerably loped down so as to confer equal rights on his sons by birth. The introduction of

coparceners by birth into the family considerably whittled down the absolute power of the father.

Several other inroads into such unitary rights and privileges of the father, where incursions had

to be made with the growth of society and the appreciation of the value of individual rights,

resulted in the enlargement of the body constituting the joint Hindu family.

A joint Hindu family consists of all male members lineally descended from a common male

ancestor and includes their wives unmarried daughters and adopted children. A daughter on

marriage ceases to be a member of her father's family and becomes a member of husband's

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INTRODUCTION

It is generally believed that ancient Hindu law was particularly harsh towards women and denied them sexual and economic freedom. In support of this premise, it is emphasized that Manu, the first lawgiver stipulated; "A women must be dependent upon her father in childhood, upon her husband in youth and upon her sons in old age. She should never be free." It is also believed that the modernity ushered in during the colonial era helped loosen out this strict sexual control by granting women the right of property ownership. The Smrities and Commentaries, with their roots in a feudal society of agrarian landholdings, prescribed a patriarchal family structure within which women's right to property was constrained. Under Hindu Law, the law of property has a close relationship with the composition of family. HINDU JOINT FAMILY UNDER MITAKSHARA LAW The Hindu joint family is a normal condition of the Hindu society. Its origin can be traced to the ancient partriarchal system where the patriarch or the head of the family was the unquestioned ruler, laying down norms for the members of his family to follow, obeyed by everyone in his family and having an unparallel control over their lives and properties. Therefore, under Hindu law the joint family system came first in historical order and the individual recognition of a person distinct from the family thereafter. The ancient system generally treated the property acquired by the member of the family as family property or the joint property of the family with family members having one or the other right over it. With gradual transformation of the society and recognition of the members of the family as independent in their own right, concept of separate property and rules for its inheritance were developed. This dual property system, though considerably diluted, has survived the lashes of time, the judicial and legislative onslaught and the Hindu society still recognizes the joint family and joint family property as unique entities having no similar concept alive elsewhere in the world. Constitution of Hindu Joint Family The institution of a Hindu Joint Family is peculiar to the Hindu jurisprudence and has its origin in ancient orthodox texts and writings of Smritikars etc. Though, it originated in the propagation of the theory of despotism and autocracy in the father, yet by efflux of time, such a concept considerably loped down so as to confer equal rights on his sons by birth. The introduction of coparceners by birth into the family considerably whittled down the absolute power of the father. Several other inroads into such unitary rights and privileges of the father, where incursions had to be made with the growth of society and the appreciation of the value of individual rights, resulted in the enlargement of the body constituting the joint Hindu family. A joint Hindu family consists of all male members lineally descended from a common male ancestor and includes their wives unmarried daughters and adopted children. A daughter on marriage ceases to be a member of her father's family and becomes a member of husband's

family. The Smritis and Commentaries make a mention of the words kutumba or avibhakta kutumba for joint or undivided family. A joint or undivided family is the normal condition of Hindus which is ordinarily joint in food, worship and estate (Creature of Law). In Surjit Lal v/s Common I.T., the Supreme Court elaborates that outside the limits of coparcenary, there is a fringe of person males and females, who constitute an undivided family. There is no limit to the number of persons who compose it, nor to their remoteness from their common ancestor and to their relationship lineally or laterally with one-another. To be a member of the family one may be added by birth, marriage or adoption. A female who comes in the family by marriage becomes sapinda of her husband. The joint family is thus a larger body consisting of a group of persons who are united by the knot of sapindaship arising by birth, marriage or adoption. Presumption of Union The joint and undivided family is the normal feature of Hindu society. There is a presumption in Hindu law that a family is living in a state of union, unless the contrary is proved. The presumption is stronger in case of nearer relationship but gets weaker in case of remoter relationship. The general principal is that every Hindu family is presumed to be joint unless the contrary is proved, but this presumption can be rebutted by direct evidence or by course of conduct. But there is no presumption that a joint Hindu family possesses joint family property, it is only an adjunct of the joint family. In M. Gowdappa v. Ramachandra10, the Supreme Court has held that the burden of proving that any particular property is joint family property is therefore, in the first instance upon the person who claims it as coparcenary property. But if the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the joint family is presumed to the joint family property. Hindu joint family is not a corporation and it has no legal entity distinct and separate from its members. It is also not a juristic person, and is represented by Karta or head of the family in relation to the affairs of the family in relation to others. Concept of Composite Family The concept of a joint family also differs from that of a composite family. The latter has come to be recognised in law on the basis of custom prevailing in certain parts of South India, especially in Andhra Pradesh. A joint family is a creation of law whereas a composite family is constituted by an agreement, express or implied, between a number of families for the purpose of living and working together. These families are not mentioned by the Smritikaras. The resources of all the families are pooled together, their gains are thrown into the joint stock, the common risks are shouldered together, and the resources of the units are exploited for the entire composite family without discrimination. The joint family is purely a creature of law. It cannot be created by the act of parties. Where the female heirs of a male inherit his self-acquired property in their individual capacity, they cannot constitute a joint Hindu family by entering into an agreement and throwing their shares into the "Joint family Property."

As a result of such co-ownership, the possession and enjoyment of the properties is common.
No alienation of the property is possible without the concurrence of the coparceners unless it is for necessity.
The interest of a deceased member lapses on his death to the survivors.
A coparcenary under the Mitakshara School is a creature of law and cannot arise by act of parties except in so far that, on adoption, the adopted son becomes a coparcener with the adoptive father as regards the ancestral properties of the latter. Distinction between Joint Hindu Family and Hindu Coparcenary A Hindu coparcenary is distinct from a Hindu undivided family. There are two schools of Hindu law, the Mitakshara and Dayabhaga. A Hindu coparcenary is a special feature of Mitakshara law and there is a clear distinction between a joint family and a Hindu coparcenary. As observed by the Supreme Court in Surjit Lal v. V. CIT,a Hindu coparcenary is a much narrower body than the joint family. The main points of distinction between these are that joint Hindu family consists of all persons lineally descended from a common ancestor and includes their wives and unmarried daughters. On the other side, all those members of the joint family who get an interest by birth in the joint family property are the members of the coparcenary. The Mitakshara School entitles a son to a right equal to his father in the joint family property by birth. Son includes the son, the son's son and the son's son's son. Coparcenary commences with a common ancestor and includes a holder of joint property and only those males in his line who are not removed from him by more than three degrees. The daughter was not given a right by birth in the joint family property. Both the concepts of "Mitakshara Coparcenary Property" and "Hindu joint family property" are often mistaken for each other. There may be some degree of overlapping between the two, but yet they are distinct from each other in some respect. The issue of their differentiation has come into focus in Hardev Rai v. Shakuntala Devi and Others. In this case, the appellant and the respondent's father entered into an agreement for the sale of some immovable property. Rule of Survivorship According to the principles of Hindu Law, there is coparcenership between the different members of a united family and survivorship following upon it. But this right of survivorship is lost31 if the marriage of the coparcener is solemnized under the Special Marriage Act of 1872. In the classical words of Lord Westbury in the well known case of Appovier v. Rama Subbayyan, "according to the true notion of an undivided family in Hindu law, no individual member of that family, while it remains undivided property, that particular member, has a certain definite share." He has an interest in the coparcenary and on his death, this interest lapses to the coparcenary; it passes by survivorship to the other coparceners. He, therefore, has no power to devise it by Will,

nor is there any question of succession to it. In no part, of the coparcenary property has he left an ‘estate’ of his own. The right of survivorship rests upon the text of Narada and is recognised in the Mitakshara. Narada says : "If among several brothers, one childless should die or become a religious ascetic, the other shall divide his property, excepting the Stridhana."In other words, survivorship consists in the exclusion of the widows and other heirs of the coparcener from succeeding to his undivided interest in the coparcenary property. Even a disqualified person is a member of the coparcenary and even though he has no rights at a family partition, he is entitled, when he becomes the last surviving male member of the joint family, to take and enjoy the whole estate by survivorship. However, the Hindu Women's Right to Property Act, 1937 makes a serious inroad upon this rule of survivorship for the interests of male coparceners in a Mitakshara family by providing to this share devolve on their death, upon their widows as for a Hindu woman's estate which they are entitled to work out by partition. Women's Proprietary Rights in Joint Hindu Family In the general body of the Hindu joint family, the Hindu coparcenary was a much narrower body. A coparcenary was a creature of law and could not be created by agreement except that a male could be inducted by way of adoption. No female could be a coparcener. A female member of the family might be lineal descendant being daughter, granddaughter or great grand daughter but was not considered as coparcener and did not acquire any right in the joint Hindu family property by birth as compared to male members.^1 The coparcenary property includes ancestral property, acquisitions made by the coparcener with the help of ancestral property, joint acquisitions of the coparceners even without such help provided there was no proof of intention on their part, that the property should be treated as joint family property and separate property of the coparceners thrown into the common stock. It is crystal clear that females have not been included in the lists of coparceners even though under the Hindu Succession Act, 1956 there are eight female heirs mentioned in class I of the Schedule. But the experience shows that females are not given their right in the property of claimants as such as in the property of their husband. When we speak of a Hindu joint family as constituting a coparcenary, we refer not to the entire number of persons who can trace descent from a common ancestor, and amongst whom no partition has ever taken place: we include only those persons who, by virtue of relationship, have the right to enjoy and hold the property, to restrain the acts of each other in respect of it, to burden it with their debts, and at their pleasure to enforce its partition. (^1) Now the position is changed by the Hindu Succession (Amendment) Act, 2005

(iii) Each coparcener has a right to possses and enjoys the coparcenary property by virtue of being a coparcener and therefore, a co-owner of it. The right is of common enjoyment which means that till a partition by metes and bounds takes place, no coparcener can claim an enjoyment exclusively of a specific portion of the property. He can neither predict his exact share nor his specific portion in the property. A temporary absence of a coparcener does not mean an ouster from possession. (iv) Coparceners have a right by birth in the coparcenary property and the moment a son is born he acquires on interest in the property. The right of the surviving coparceners to enlarge their shares in the property is due to the application of the doctrine of survivorship. (v) In a joint family, Karta has the authority to manage the affairs and also the property in the best interests of the family. He is not accountable to the other members except in three situations: (a) He is conducting the family business and the nature of business is such as necessitates maintenance of proper accounting; (b) There are charges of fraud or misappropriation of income or conversion; (c) When a coparcener asks for a partition. In such cases, the coparcener can ask the Karta to render the account, but, the Karta cannot be asked to give the past accounts and he would be within his rights to render only the then existing accounts. (vi) A coparcener can hold an interest in the coparcenary property and possess separate property of his own at the same time. Law does not restrict him from acquiring property in his individual capacity and for this the consent of the other coparceners is not an essential requirement. (vii) The interest of a coparcener in the coparcenary property is a fluctuating interest that changes with the deaths and births of other coparceners in the family. A coparcener is competent to convert this fluctuating and probable share to a fixed and specific share in the property by demanding a partition. Except in Bombay and Punjab, where a son cannot demand a partition from the father, if he is joint with his own father without his consent, every coparcener has a right to demand a partition. (viii) A coparcener cannot ordinarily transfer his undivided share except under some specific situations, but a coparcener is empowered to renounce his undivided share in the joint family property, in favour of all the remaining coparceners. Two things are important here; firstly renunciation should be of the entire undivided interest of the coparcener,either he renounces his total interest or none at all; secondly such renunciation must be in favour of all the remaining coparceners.

(ix) A coparcener, who commits an act that is improper, illegal or prejudicial to the interest of the joint family members or the coparcenary property including common enjoyment and possession, can be restrained by an injuction from doing such an act. (x) As a general rule of Mitakshara coparcener does not have a right to dispose of his undivided share in the coparcenary property by alienation unless all the coparceners give a valid consent to it. (xi) The power of alienation of joint family property is with the Karta. Where Karta sells the joint family property for an unauthorised purpose, the coparceners have three remedies in the alternative: (a) A coparcener can seek partition and separate from the family. (b) Where the act of Karta amounts to a waste or an ouster, he can be restrained by an injuction obtained from the Court from committing such waste. (c) Where an alienation of the property is already effected, it can be challenged by the coparceners as invalid and not binding on their shares. However, where the property is sold by the father to pay his antecedent debts and the sons claim that such alienation was not binding on them as the debts were contracted by the father for an illegal or immoral purpose, not only do they have to prove the immoral or illegal character of the debt but also that the creditor had notice of it. Legislative Inroads into the Concept of joint family One of the basic incidents of the concept of joint family is the existence of joint as well as separate property in the family. At the time of the discussion on the Hindu Succession Bill in Parliament in the year of 1954-55, several parliamentarians recommended its abolition as it treated women unfavourably, but a considerable majority favoured its retention in the name of it, symbolising the very essence of Hindu religion. The concept of notional partition was introduced in the Hindu Succession Act, but the result was still an unequal treatment to women. In the light of the Constitutional mandate of gender parity, these property related provisions stood out as discriminatory and to remove that, two options were available with the legislature. First, to abolish the joint family and separate property distinction by abolishing the very concept of joint family system and the other to make the daughter also a coparcener in the same manner as a son with a right by birth in the coparcenary property. The Kerala legislature opted for the former and passed the Kerala Joint Hindu Family (Abolition) Act in 1975. The enactment was equally applicable to matriarchal families and also to patriarchal families governed by the Mitakshara law.

Family Law Part-I for LLB Course, Study notes of Sociology of Law

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Partial preview of the text

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INTRODUCTION