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PROJECT REPORT

ON
JOINT FAMILY

SUBMITTED TO : SUBMITTED BY :

DR.JAIMALA MAMTA

PROF. UILS, PU 148/15; 4th SEMESTER

CHANDIGARH B.COM/LLB HONS


ACKNOWLEDGEMENT

Success is a blend of multiple efforts. The final import of this project is also a result of the sheer
hard work and constant support of many people. I would like to take this opportunity to thank all
of them.

To begin with, I would like to express my humble gratitude to my teacher, Mrs. Jaimala , for
her able guidance and mentoring. The meticulous manner in which she teaches has paid
significantly in the completion of this project.

Secondly, I would like to thank my department, University Institute of Legal Studies, Panjab
University, Chandigarh, for providing such an expansive library which provided me all the
relevant material required for this project.

Last but not the least, I would like to express my profound gratitude to my parents and my
friends who have constantly supported and motivated me throughout this project.

MAMTA
Contents
ACKNOWLEDGEMENT................................................................................................. 2
JOINT FAMILY AND COPARCENARY...............................................................................4
COMPOSITION OF JOINT FAMILY:-............................................................................. 4
CORPORATE PERSONALITY AND COMPOSITE FAMILY :-............................................5
HINDU UNDIVIDED FAMILY:-..................................................................................... 5
COPARCENARY............................................................................................................ 6
Incidents of Coparcenary Property under Hindu Law...............................................7
COPARCENARY BETWEEN A SANE AND INSANE PERSON.........................................8
CLASSIFICATION OF PROPERTY................................................................................... 9
(a) JOINT FAMILY PROPERTY............................................................................... 10
Concept of Ancestral Property...............................................................................10
(i) PROPERTY INHERITED FROM FATHER, FATHERS FATHER OR FATHERS
FATHERS FATHER -................................................................................................ 11
(ii) PROPERTY INHERITED FROM MATERNAL GRANDFATHER-.............................11
(iii) PROPERTY INHERITED FROM ANY OTHER RELATIONS-.................................12
PROPERTY OBTAINED ON PARTITION-....................................................................12
CONSTITUTION OF JOINT HINDU FAMILY-................................................................13
PROPERTY RECEIVED IN GIFT-................................................................................ 13
Gift by Father of self acquired property-................................................................13
GIFT OF JOINT FAMILY PROPERTY BY KARTA-..........................................................14
(b) SELF-ACQUIRED PROPERTY-................................................................................15
DERECOGNITION OF A RULER:HIS SEPARATE PROPERTY-.......................................16
RIGHTS OF COPARCENER-...................................................................................... 16
KARTA....................................................................................................................... 17
POWERS................................................................................................................ 18
RESPONSIBILITIES.................................................................................................. 19
DAYABHAGA JOINT FAMILY..................................................................................... 20
DIFFERENCE BETWEEN MITAKSHARA AND DAYABHAGA .........................................21
BIBLIOGRAPHY.......................................................................................................... 24

JOINT FAMILY AND COPARCENARY

A Hindu Joint Family setup is an extended family arrangement prevalent which has an enormous
legal significance in India. Wide sweeping changes have been introduced in the composition of
the Joint family by way of Hindu Succession (Amendment) Act, 2005. By virtue of this
Amendment Act, now the daughter of a coparcener is also a coparcener in her own right and in
the same manner as a son.1

Anthropologists and sociologists still do not agree as to whether the Mitakshara Joint Family
evolved out of the despotic patriarchal family or the democratic village community. One thing is
certain that the Mitakshara Joint Family is a unique contribution of Hindu jurisprudence which
has no parallel in any ancient or modern system of law. Whatever the sceptic may say about the
future of the Hindu Joint Family, it has been and it is still the fundamental aspect of the life of
Hindus. In fact for a Hindu there is no escape from the joint family. May be in one generation , it
is broken it is brought to end by partition ,but again in the next generation it comes into existence
automatically ,and there is no way in which one can escape from it. It is in this sense that we say
that in Hindu law there is a presumption that every family is a joint Hindu Famiy.

COMPOSITION OF JOINT FAMILY:-


A Hindu Joimt family consists of the common ancestor and all his lineal male descendants upto
any generation together with the wife or wives or unmarried daughters of the common ancestor
and of the lineal male descendants. It has to be clearly understood that the existence of the
common ancestors is necessary for bringing a joint family into existence; for its continuance
common ancestor is not a necessity. The death of common ancestor does not mean that the joint
family will come to an end. Upper links are removed and lower ones are added and in this
1 Devolution of interest in coparcenary property
manner, so long as the line does not become extinct, the joint family continues and can continue
indefinitely, almost till perpetuity. It is remarkable feature of Hindu law that even an illegitimate
son is a member of his fathers joint family. Sometimes even widowed daughters may return to
their fathers family and may lay claim on the bounty of the joint family. The ancient Hindu law
recognized their right of maintenance.

CORPORATE PERSONALITY AND COMPOSITE FAMILY :-


A Hindu joint family is not a corporation. A hindu joint family has no legal entity distinct and
separate from that of members who constitute it. It is not a juristic person either. 2 Hindu joint
family is a unit and in all affairs it is represented by its Karta or head. Within its fold no outsider ,
except by adoption , can be admitted by agreement or otherwise. It confers a status on its
members which can be acquired only by birth in the family or by marriage to a male member.3
Hindu Joint Family is also different from a composite family. Composite family is a creature of
custom and owes its constitution to an agreement. Where two or more families agree to live and
work together, pool their resources, throw their gains and labour into the joint stock and shoulder
the common risk, there comes into existence composite family.4

HINDU UNDIVIDED FAMILY:-


An HUF is a separate entity that can be created by members of a family, wherein the members
are lineal ascendants or descendants. Hindus, Buddhists, Jains and Sikhs can open HUFs. A
single person cannot create an HUF. Usually the senior-most member of the family is considered
the karta, the person who manages the affairs of the HUF. Once a person gets married, an HUF is
automatically created. But to be recorded by tax authorities, it needs to have an income-
generating asset, which can only come as a gift from a relative or through a Will for all members
of the HUF. Once it has such an asset, the HUF needs to be registered in a particular name and
other formalities such as opening a bank account and acquiring a Permanent Account Number

2 Chotelal v. Jhandelal, 1972 All 424.

3 Ram Kumar v. Commr, Income Tax, 1953 All. 150.

4 Anchuru v. Gurijala, 1961 A.P. 434.


(PAN) have to be done. There can be joint family consisting of a single male coparcener and a
widow of coparcener. There can also be a joint family where there are only widows. The rule is
that even on the death of sole surviving coparcener, the Hindu Joint family does not come to an
end so long as it is possible in nature or law to add a male member to it. 5It is submitted that when
there is joint family consisting of female members and a male member, the male member can
treat the joint family property almost as his separate property.

COPARCENARY

Coparcenary refers to equal inheritance that was restricted only to male members of the Hindu
Undivided Family. It is a narrow body of persons within a joint family. Coparceners jointly
inherit property and have unity of possession. Coparcenary means A species of estate, or
tenancy, which exists where, land of inheritance descent from the common ancestor to two or
person. 6 According to Merriam Webster Dictionary coparcenary means Joint Heirship or Joint
Ownership. 7

Coparcenary is purely a creation of law that cannot be created by act of parties, except by
adoption. In order to be able to claim a partition, it does not matter how remote from the
common ancestor a person may be, provided he is not more than four degrees removed from the
last male owner who has himself taken an interest by birth. 8

The Hindu Succession Act 1956 is one of the living examples of the fact that laws are patriarchal
in nature. It gave women equal inheritance rights, at par with men. But the daughters were not
given a birth right in the ancestral property under Mitakshara coparcenary.

5 Gowli v. Commr., Income Tax, Mysore, 1966 S.C. 1521.

6 http://thelawdictionary.org/coparcenary/.

7 http://www.merriam-webster.com/dictionary/coparcenary.

8 P.V.Kane, History of Dharmasastra, Vol. III, 3rd ed. 1993, p. 591. Vide Moro vs. Ganesh, 10
Bm. HCR, p. 444, 461-468.
Incidents of Coparcenary Property under Hindu Law

Four generation rule The lineal male descendants of a person, up to third generation
(excluding him), acquire on birth, an interest in the coparcenary property.

Creation of law- Coparcenary is also a creation of law and cannot be formed by an


agreement between the parties.

Only males No stranger can be introduced in the coparcenary. Only a male child, born
in the family or validly adopted, can become a coparcener.

Collective enjoyment The proceeds of undivided family must be brought to the


common chest or purse and then dealt with according to the modes of enjoyment by the
members as an undivided family till a partition takes place because they hold everything
jointly. 9

Acquisition of interest by birth A coparcener in a joint family is born with an interest in


the coparcenary property which means that the moment he is born in the family he gets a
right by birth in the ownership of the coparcenary property.

Fluctuating and not a specific interest A coparcener on birth gets an interest in the
coparcenary property. His interest in the property is not a specific share and is subject to
fluctuation with the deaths and births of other coparceners in the family. For example, a
9 Appovier alias Seetaramier vs. Rama Subba Aiyan, 1866 11 MIA 75.
joint family comprises a father and two sons. Each of these is a coparcener and entitled to
one- third share in the coparcenary property but on the death of any one coparcener, it
will fluctuate and will increase.

Doctrine of Survivorship Under the traditional law, on the death of a coparcener, his
interest in the family property is immediately taken by those coparceners who survive
him and thus he leaves nothing behind out of his interest in the coparcenary property for
his female dependents.10 This phenomenon is called doctrine of survivorship.

Alienation of undivided interests Generally, a coparcener is individually not entitled to


alienate his undivided interest in the coparcenary property. Only in certain situations the
father or senior most male member or the karta can alienate the undivided interest or even
the whole property.

Daughter has also been made a coparcener by virtue of Section 6(1) of the Hindu Succession
(Amendment ) Act, 2005.

COPARCENARY BETWEEN A SANE AND INSANE PERSON


There can be a coparcenary between a sane person and insane person. A coparcener gets his right
in the coparcenary property by birth and there is nothing in Hindu law which shows that such a
right is irrevocably extinguished on a supervening insanity.11Under Hindu Law, an insane
coparcener has no right to claim partition and has no right to a share if partition takes place, but
this doesnot make him a cease to be a coparcener. When he is cured of insanity, both his rights
revive.

10 State Bank of India v. Ghamandi Ram, AIR1969 SC 1330.

11 Amirthamma v. Vallimayil, 1942 Mad. 693 (idiot coparcener).


CLASSIFICATION OF PROPERTY

SAPRATIBANDHA DAYA and APRATIBANDHA DAYA

The Mitakshara school classifies property mainly under two heads: first , apratibandha daya or
unobstructed heritage and sapratibandha daya or obstructed heritage. 12All properties inherited by
a Hindu male from a direct male ancestor, not exceeding three degrees higher to him is called
apratibandha daya. In this property his son, sons son and sons sons son acquire an interest by
birth.13Therefore, it is called an unobstructed heritage. Thus , properties inherited by a Hindu
male from his father, fathers father and fathers fathers father are called unobstructed heritage.
On the other hand, when a person inherits property from any other relation such as maternal or
paternal uncle or brother, nephew, etc. , then it is known as sapratibandha daya and his son, or
sons son or sons sons son or for that matter any other person doesnot acquire an interest by
birth. The unobstructed heritage devolves by survivorship and obstructed heritage by inheritance.
Coparceners can restrain the holder of apratibandha daya from alienating it , while in case of
sapratibandha daya its holder, so long as he is living , has absolute rights of alienation over it:

12 Mitakshara{ 1,2,3.

13 Radha v. Ram, 1985 Pat. 285


He may gift it inter vivos or by will , he may sell it or mortgage it. 14When the sons inherit
separate property of their father vis--vis each other, they take it as separate property, but the
moment a son is born to anyone of them, vis--vis their sons it becomes the joint family
property.15In Municipal Council, Mandasaur v. Fakir Chand,since the brothers became owners of
their fathers property only after his death vis--vis themselves, it was held to be not joint family
property as they did not have a birthright in it. Joint family property and Separate property-
Secondly, and rather significantly , property is classified into :

(a) Joint family property or coparcenary property, and


(b) Separate property or self-acquired property.

(a) JOINT FAMILY PROPERTY


The joint family property is the most important aspect of the law of the Hindu Joint Family. The
Hindu joint family is like a big reservoir into which property flows in from various sources and
from which all members of the joint family draw out to fulfill their multifarious needs. The joint
family property may flow into it from various sources.

ANCESTRAL PROPERTY-

In a Landmark Judgment pronounced by Supreme Court of India in case titled Uttam vs


Subagh Singh, Civil Appeal no. 2360/2016 Dt. 2nd March 2016 has relaid the Law on to the
Concept of Ancestral Property.Apex Court ruled that a conjoint reading of Sections 4, 8 and
19 of the Hindu Succession Act, 1956, after joint family property has been distributed in
accordance with section 8 on principles of intestacy, the joint family property ceases to be
joint family property in the hands of the various persons who have succeeded to it as they
hold the property as tenants in common and not as joint tenants.

14 Md. Hussain v. Beboo (1937) All 655.

15 P. PERIASAMI V. PERIASAMI,1980 Mad. 33


The suit was filed by a Son for partition, in Devas, Madhya Pradesh, against his father and
his fathers three brothers. He claimed a 1/8th share in the suit property on the footing that
the suit property was ancestral property, and that, being a coparcener, he had a right by birth
in the said property in accordance with the Mitakshara Law. It was ruled by SC that on the
date of the birth of the appellant in 1977 the said ancestral property, not being joint family
property, the suit for partition of such property would not be maintainable.

Concept of Ancestral Property

Broadly speaking, property inherited from any ancestor or ancestress may be called ancestral
property. But it is not this sense in which it is used in Hindu Law. It has a technical meaning.
Inherited property may be classified under following heads:

(i)Property inherited from father, fathers father or fathers fathers father,


(ii)Property inherited from maternal grandfather, and
(iii)Property inherited from any other relation

FEATURES:

1. This property should be four generation old.

2. It should not have been divided by the users in the joint Hindu
family as once a division of the property takes place, the share or
portion which each Coparcener gets after the division becomes his
or her self acquired property.

3. The right to a share in ancestral or coparcenary property accrues by


birth itself, unlike other forms of inheritance, where inheritance
opens only on the death of the owner.
4. The rights in ancestral property are determined per stripes and not
per capita. Share of each generation is first determined and the
successive generations in turn sub divide what has been inherited
by their respective predecessor.

5. Properties inherited from mother, grandmother, uncle and even


brother is not ancestral property. Property inherited by will and gift
are not ancestral properties.

6. Self acquired property can become ancestral property if it is thrown into the pool of
ancestral properties and enjoyed in common.

(i) PROPERTY INHERITED FROM FATHER, FATHERS


FATHER OR FATHERS FATHERS FATHER -
This is the same thing as sapratibandhadaya and it is this property which is called ancestral
property.

(ii) PROPERTY INHERITED FROM MATERNAL


GRANDFATHER-
Accordig to Mitakshara, this head is not necessary, as under the Mitakshara property inherited
from any person, other than the father, fathers father and fathers father is obstructed heritage
and there is no distinction whether the property is inherited from a paternal uncle or maternal
uncle. But the two privy council decisions have necessitated this classification. In Venkayyamma
v. Venkatarayyammammma16two brothers members of a joint family, inherited certain properties
from their maternal grandfather. One of them died without a male issue and his widow claimed
his share by inheritance, while the other brother claimed it by survivorship. The privy council
held that it was joint family property and passed by survivorship to the other brother. However in
Md. Husain v Kisheva 17the privy council took a contrary view; it was held that when a hindu
16 (1902) 25 Mad, 678.

17 1937All. 655.
inherits property from his maternal grandfather , his son does not acquire any interest in it by
birth. Even in the earlier case they did not say that it is an unobstructed heritage . In any case, the
former decision is obviously bad law even if it is a restrictively interpreted to mean that brothers
inheriting property from their maternal grandfather take it inter se as joint family property. In
Maktul v. Manbhari18,a case under the Punjab Customary Law , the Supreme Court held that the
property inherited by a person from his maternal grandfather is not ancestral qua his descendants.

(iii) PROPERTY INHERITED FROM ANY OTHER RELATIONS-


It is a settled law that property inherited by a person from any other relation(i.e, other than those
in (a) and (b) above is not ancestral property. Such property is his separate property and his son
doesnot take any interest in it by birth. For example , property inherited from a maternal uncle or
paternal uncle will constitute separate property.19Simiarly, property coming from issueless
brother and property acquired from sister who had relinquished her share would not be ancestral
property.20

PROPERTY OBTAINED ON PARTITION-


When a coparcener partitions from the joint family and obtains his share of property, what will
be the character of the property, what will be the character of this property? In respect of his own
son , sons son and sons sons son, it will continue to b joint family property, but in respect of all
others it will be his separate property.21 It may be illustrated thus : A coparcenary consists of A
and his two sons B and C and if they partition, the properties obtained by each will be his
separate property.22Even As share will be his separate property in the sense that his sons B and C
18 (1958) S.C.J. 1268

19 Om Prakash v. Savjit Singh, 1995n HP 92

20 Dharam Singh v. Sadhu Singh, 1997 P&H 198.

21 Jagir Singh v. Amar Singh, AIR 2004 P&H 51.

22 Kondiram v.Krishna,1995 S.C. 279;


have no interest, no birthright in it. But the moment any one of them gets a son , his share will
again become joint family property. This will be so even if A gets another son D; A and D will
constitute a new coparcenary. Properties acquired by a coparcener after severance of status will
be his separate property.23On the other hand , properties having joint family nucleus till partition
will be joint family property.

CONSTITUTION OF JOINT HINDU FAMILY-


Three brothers and their father constituted a joint family and on the death of the father, the
brothers got separated in food, worship and in estate , but village properties consisting of land
and house were still joint. It would characterize existence of joint family. The fact that one of the
brothers acquired separate property could not be a ground to conclude that the three brothers did
not constitute Joint Hindu Family.24

PROPERTY RECEIVED IN GIFT-


Under this head, the gift of the following properties may be considered;

(1) Gift of his self acquired property by the father to son;


(2) Gift of joint family property:
(a) By father-karta,or
(b) By Karta.

Gift by Father of self acquired property-

The question is, if a father gives his self-acquired property, movable or immovable, by gift or by
will to one of his sons, to the exclusion of others, whether , the son will take it as ancestral
property. The difficulty arises on account of two principles of law that come into
application(i)Every hindu has full power of disposal over his separate property;(ii) When self-
acquired property of a hindu devolves on his son by inheritance, the son takes it as ancestral

23 Kondiram v.Krishna,1995 S.C. 279;

24 Khyali Ram Sharma v. Bhola Dutt Sharma, AIR 2005 Uttaranchal 49.
property in which his son has an interest by birth. In accordance with the first principle , the
father has the power of giving the property in gift. But , can he, by changing the mode of
devolution of property, change the character of the property? In other words, had he allowed it to
devolve by the natural mode ,i.e., intestate succession, the property would have been ancestral
property in the hands of his son, but he changes the mode of devolution and makes it to devolve
by gift, can he thereby change the character of the property? It may be noted that if A who has
three sons B,C,D makes a gift of his self-acquired property to C to the exclusion of B and D, the
question is not whether B or D can challenge it. They obviously cannot. The question is : can Cs
son claims an interest in it by birth ?Before 1953 there was a difference of opinion among our
High Courts and as many as five views existed. But in 1953, the Supreme Court in Arunachalam
v. Murugantha25 after considering the texts and the various decisions of the High Courts, said that
the answer to the question primarily depends upon the intention of the father. The intention is to
be gathered from the terms of the deed.

GIFT OF JOINT FAMILY PROPERTY BY KARTA-


It is an established rule of Hindu law that the karta of the joint family, whether father or someone
else has the power to make a gift of ancestral immovable as well as movable property within the
reasonable limits in discharge of his religious duties or for pious purposes. Such a gift can be
inter vivos and not by will.26 In the hands of a donee the property will be his separate property.

25 1953 S.C. 495; K.R. Ramaswami v. Premabai, 1988 Kant. 116

26 Guramma v. Mallappa, 1964 S.C. 510


(b) SELF-ACQUIRED PROPERTY-

A member of the Hindu Joint Family or a coparcener can , under hindu law, make separate
acquisition of property. When the concept of the self-acquired or separate property of the
coparcener came into existence , it seems that in the beginning the acquirer was given a double
share , or was permitted to retain the property during his life time. Gradually this was converted
into the separate property of the coparcener. The key words in the doctrine of self- acquisition are
what has been acquired without any deteriment to the joint family property.Thus, the separate
property may be obtained from several sources.

GAINS OF LEARNING- According to Katyayanas enumeration, gains of learning fall under the
following categories;

(a) Anything gained by proving superior learning after a prize has been offered;

(b) Anything obtained from a pupil or by officiating as a priest, or for answering any
question or for determining a point in dispute, or for reciting the vedas, or by display of
knowledge or by success in debate;

(c) Anything gained by proving superior skill by winning from another a stake at a play;

(d) Anything obtained by boast of learning, anything received from a pupil or by the
performance of a sacrifice;

(e) Anything obtained by an artist by performing , display of artor anything which is gained
in excess or prescribed hire;and

(f) Anything gained from superiority in learning, and what has been acquired in a sacrifice
or from a pupil or acquired by art and science.

The gains of learning mean those gains which are made on account of some education or training
that a coparcener has received. The main question is :if the training or education has been
received at the expenses of the joint family property, does it mean that anything acquired by the
acquirer on account of training or education is to the determinant of joint family property?
DERECOGNITION OF A RULER:HIS SEPARATE PROPERTY-
On derecognition of a Ruler, his non estate separate property will continue to be his separate
property.27

RIGHTS OF COPARCENER-

We have already discussed rights of coparceners earlier. These may be summarized here. The
main rights of coparceners are:

(1) Right of joint ownership,

(2) Right of Joint possession, enjoyment and use of joint family property,

(3) Right of Survivorship,

(4) Right of Alienation of undivided interest under certain circumstances and in some schools
of Hindu law,

(5) Maintenance,

(6) Right to Challenge an improper alienation made by Karta or any other member together
with the right to restrain improper alienation,and

(7) Right to partition.

27 Shantadevi v. Sorimat Sangram Singh, AIR 1996 Guj 32;


KARTA

In the entire HINDU joint family, the karta or manager, occupies a very important position. He
possesses a pivotal position. So unique is his position that there is no offence or institution in any
other system of the world which can be compared with it. He is a person with limited powers, but
within the ambit of his sphere, he possesses such vast powers as are possessed by none else.

WHO CAN BE THE KARTA-

A joint family is headed by a karta who is normally the eldest living male member of the family.
Karta has some peculiar rights and obligations under traditional Hindu Law, he has the power
and duty of superintendence of how the joint family is run, who is getting what ?, how the
members are being maintained? He is also entitled to dispose off the property in times of dire
need/necessity. After 2005 amendments by which women have been given equal proprietary
rights in ancestral property even women can be Kartas.

So long as the father is alive, he is the karta. After his death it passes to the seniormost male
member, who may be the uncle, if coparcenary consists of uncles and nephews or who may be
the eldest brother, if coparcenary consists of brothers.

Junior Male Member-

In the presence of a senior male member, a junior cannot be the Karta. But if all the coparceners
agree, a junior male member can be a karta. The junior member owes his appointment to the
agreement or consent of the coparceners. Coparceners may withdraw their consent at any time.

A junior member of Hindu Undivided Family was realizing rent, he filed suit for eviction, the
tenant cannot question his locus standi or capacity to file suit.28

More than one Karta- There can be more than one karta.29

Female members as Karta- The Nagpur High Court held the view that mother, though not a
coparcener, can be in the absence of adult male members, Karta of the Joint family, and her acts
will be binding on others as that of a Karta.
28 M/S Nopany Investments (P) LTD. V. 2008 S.C. 673.

29Mudit v. Ranglal,(1902)
The Karta's powers and liabilities and his power of alienation are similar in both the Dayabhaga
and the Mitakshara Schools. The difference that draws a contradistinction between the two is that
the latter must be in a position to render full accounts at all points of time. On the other hand the
Karta under the Dayabhaga School should render accounts only at the time of partition.

POWERS

(i)Powers of Management: The powers of management of the Karta are absolute.He


can manage or mismanage the property, family affairs and business any way he likes without
being questioned by anyone. He cannot be liable for positive failures. He can discriminate
between family members. However, he cannot deny maintenance or occupation of property to
any member of the coparcenary. The possibility is a check on the Kartas absolute power.
Affection and natural concern for the family members and the faith and confidence of the
members in him is considered the most important check on his powers.

(ii)Right to Income or Remuneration and Expenditure : The income of the


joint family property, in its entirety, must be given to the Karta. It is then his responsibility to a
lot the funds to members and to fulfil their needs. The income of the Karta is considered
expenditure incurred in interest of the joint family, in the interest of and wholly and exclusively
for the purpose of the business of the Hindu undivided family, is not a deductible expenditure
under the Income Tax Law in computing the income of the Hindu undivided family. The Karta
controls the expenditure of the funds. The scope of his power to spend extends only to family
purposes, i.e., management, protection of estate and residence, realization, maintenance,
marriage, education, religious ceremonies, etc.

(iii)Right to Represent Joint Family : The Karta represents the family in legal,
religious and social matters.His Acts are binding on the members of the family. The family does
not have corporate existence; it acts only through its Karta. It has been held that if a Karta
contracts debts in order to carry on a family business, he renders the entire family property, along
with shares of the other members of the family, liable for such a debt.
(iv)Power Of Compromise: The Karta can compromise disputes regarding the family
property and/or its management, family debts as well as other transactions. A malafide
compromise can be challenged in a partition. The Karta can even compromise a suit pending in
court, and the members will be bound by it. However, minor coparceners can use Civil
Procedure Code., whereby the compromise has to be approved by the court if one of the parties
is a minor.

(v)Power to Refer a Dispute to Arbitration: The Karta can refer a dispute to arbitration. If the
award is valid, it becomes binding on all members of the joint family.

RESPONSIBILITIES

(i)Maintenance: All coparceners, from the head of the family to the junior most members,
have the inherent right to maintenance. It is the responsibility of the Karta to maintain all the
members of the family. Those who would be entitled to share the bulk of property are entitled to
have all their necessary expenses paid out of its income. If he unjustly excludes a member from
getting maintenance or if he does not maintain a member properly, he can be sued for both, the
maintenance and arrears of maintenance.

(ii)Marriage; The Karta is responsible for each unmarried members marriage,


especially the marriage of daughters since it qualifies as a sacrosanct duty in Hindu law. The
expense of the marriage is taken out of the joint family property. If the expenses are met
externally, they must be reimbursed out of the joint family funds.

Accounts At the Time of Partition: Partition brings the joint family status to an
end. Under Mitakshara Law, it means:

Severance of status and interest: It is an individual decision;


wherein a member wants to sever himself from the joint family and enjoy
undefined and unspecified share separately.
DAYABHAGA JOINT FAMILY

The joint family is one of the areas where the Mitakshara and the Dayabhaga differ from each
other fundamentally. In modern Hindu law, the joint family is the only major area where two
schools of Hindu law still have significance.

SONS HAVE NO RIGHT BY BIRTH-

Strictly speaking under the Dayabhaga school, there is no joint family between father and son.
Sons have no right by birth 30. Therefore the father can give gift of immovable property to his
wife.31Similarly, the sons have no right of survivorship. Under the Dayabhaga School, all
properties, self-acquired as well as coparcenary devolve by succession.

Pondicherry State-

In the State of Pondicherry, a son has no birth right in the ancestral property in the hands of the
father.

30 Banki v. Ayodhya(1974)42 C.C.T. 403

31 Binapani Paul v. Pratima Ghosh, 2008.


DIFFERENCE BETWEEN MITAKSHARA AND
DAYABHAGA

No

Mitakshara Coparcenary
Dayabhaga Coparcenary
1
As to how the Coparcenary arises -Under
As to how the Coparcenary arises
the Dayabhaga school of Hindu law there is
- The Mitakshara Coparcenary arises
no right by birth. So during the father's life-
during the life-time of the father itself
time between the father and the sons there is
and his sons have right birth.
no Coparcenary. When the father dies, his
sons constitute a Coparcenary.

2
Nature of interest of coparceners - In the
Nature of interest of coparceners - In Dayabhaga school of Hindu law each
the Mitakshara births and deaths of coparcener has a defined interest. It can be
coparceners. It passes by survivorship. alienated. It does not pass by survivorship.
So the power of alienation either does not
exist or is recognized only to a limited
extent (as in Bombay and Madras).

3
Expansion of Coparcenary - Under the
Mitakshara system only males can be Expansion of Coparcenary - Under the
coparceners. On the birth of a son to a Dayabhaga system, on the death of one
coparcener, the son also becomes a coparcener his heirs become coparceners. So
coparcener under the Mitakshara system. even females may in this way become
coparceners.

Alienee's right to ask for partition Alienee's right to ask for partition -Under
- Under Mitakshara since there is no the Dayabhaga law, the alienee can ask for
defined share, a suit for partition is the joint possession along with the coparceners.
only appropriate remedy of the alienee. This is because he has a defined share.

Persons entitled to partition -Under the Persons entitled to partition - The


Mitakshara as administered today the son Dayabhaga law does not confer on the son a
can institute a suit for partition even right by birth and so he has no right of
partition as against the father.
against their father.

It is important to note that under the Dayabhaga school there cannot be a coparcenary of father
and son, or grandfather and grandson or great grandfather or great grandson, though it can be of
uncles and nephews.

Each Coparcener takes a defined share:-

Unlike the Mitakshara coparcener takes a specified and fixed share on the death of his ancestor.
It is not a fluctuating and uncertain interest. This means that in a Dayabhaga Coparcenary, there
is no community of interest. For Instance- A, the father dies leaving behind three sons B,C and
D. B,C and D each will inherit 1/3 properties. The 1/3 share of each coparcener is a fixed and
certain share. It will not fluctuate on the death or birth of any person in the coparcenary. So long
as B,C and D are living , neither their sons nor any other person can claim any interest in it.

Unity possession:-
Although in a Dayabhaga coparcenary, there is no community of interest , yet there is unity of
possession. We have seen earlier that when sons succeed to the property of their father and
constitute a coparcenary, they take fixed share, 1/3 or , as the case may be. But till a partition
by metes and bounds,i.e.(distribution of properties) takes place , no coparcener can say which is
his 1/3 or . In other words, none of them can say that such and such property will fall to his
share. Each coparcener is in possession of the entire property, even if he has no actual
possession, as possession of one is possession of all. No one can claim any excusive possession
of property unless agreed upon by coparceners.32

Doctrine of Survivorship not applicable:-

Under the Dayabhaga school, all properties devolve by succession. Therefore, if a coparcener
dies, his share does not pass by survivorship to other coparceners but devolves by inheritance to
his heirs. The doctrine of survivorship is not recognized under the Dayabhaga School.

Joint Family Property and Separate Property:-

Under the Dayabhaga School, the apratibandha daya or the unobstructed heritage is not
recognized. All heritage under the Dayabhaga law is sapratibandha daya or obstructed heritage.
On the other hand, the division of property under joint family or coparcenary property and
separate or self-acquired propertyis recognized and practically all the heads of coparcenary
property and separate property under the Mitakshra school also exist under the Dayabhaga
school. Thus coparcenary system may consists of ancestral property, joint acquisitions, property
thrown into the common stock.

32 Batai v. Chabilal, 1974 Pat. 147.


BIBLIOGRAPHY

MODERN HINDU LAW- PARAS DIWAN

http://www.srdlawnotes.com visited on 16-4-17


http://learningoflaw.blogspot.in visited on 20-4-17
https://www.lawteacher.net visited on 22-4-17