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MONSOON SEMESTER 2016

FAMILY LAW II PROJECT

DIFFERENCE BETWEEN FAMILY PROPERTY AND SELF - ACQUIRED PROPERTY

SUBMITTED BY -

TANVI ANAND

SECTION - A

215036
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INTRODUCTION

A joint Hindu family consists of all persons lineally descended from a common ancestor, and
includes their wives and unmarried daughters.1 An undivided Hindu family is not only joint
in estate, but also in food and worship.2 The existence of a joint estate is not a pre-requisite
for the existence of a joint family3 but a family ceases to be joint where there is a joint estate
and the members become separate in estate.4 On the other hand, Hindu coparcenary is a much
narrower body and includes only those persons who acquire by birth an interest in the joint or
coparcenary property those being the sons, grandsons and great grandsons of the holder of the
joint property for the time being. Even though there’s a difference between joint Hindu
family and a Hindu coparcenary, the term ‘joint family property’ is synonymous with
‘coparcenary property’.5 The Courts of this Country as well as the Privy Council and the
recognised text-book writers have indiscriminately used the expressions, 'joint property',
'joint family property', 'ancestral property' and 'coparcenary property' to denote one and the
same property, without intending to make a distinction between the legal incidents depending
upon the use of one or other of the expressions.6

DISTINCTION BETWEEN DAYABHAGA AND MITAKSHARA JOINT FAMILY

A joint family under Dayabhaga differs from a Mitakshara joint family in certain fundamental
aspects, the primary among them being absence of a right by birth of a son. Dayabhaga law
doesn’t recognize the doctrine of survivorship. Son’s right arises only on the death of his father.
There is no distinction between separate property and coparcenary property and the entire
concept is based on inheritance, i.e. the sons inherit the property.7 In a Dayabhaga joint family,
the father has absolute powers of management8 over the separate as well as coparcenary
property and the sons have only a claim of maintenance. Thus, the sons have neither a right to
ask for partition of the property from the father nor a right to even ask for the accounts of the
joint family property. Where it comes to the death of the father, the sons have a specific defined

1
Commissioner of Income Tax v Luxminarayan, AIR 1935 Bom 412.
2
Sri Ragbunada v Brozoa Kishor (1976) 1 Mad 69.
3
Janakiram v Nagamony AIR 1926 Mad 273.
4
Chowdhry Ganesh Dutt v Jewach (1904) 31 1A 10.
5
Mulla's Principles of Hindu Law, Thirteenth Edition, at page 246, in paragraph 220
6
V. Devaraj vs Jayalakhmi Amma (1971) 1 MLJ 429
7
KKR Paul v Manoranjan Kar AIR 1968 Tripura 34.
8
Makhan Lal v Sushma Ram AIR 1953 Cal 164.
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share in contrast to Mitakshara coparcener’s fluctuating interest. A coparcener here is the

absolute owner of the property with full powers of alienation.9

CLASSIFICATION OF PROPERTY

Property, according to Hindu Law, can be divided into two classes, namely: (i) joint family
property and (ii) separate property. Joint family property may be further divided, according
to the source from which it comes, into

(1) Ancestral property, and

(2) Separate property of coparceners thrown into the common coparcenary stock.10

Property jointly acquired by the members of a joint family, with the aid of ancestral property,
is joint family property. Property jointly acquired by the members of a joint family without
the aid of ancestral property may or may not be joint family property; whether it is so or not
is a question of fact in each case.

JOINT FAMILY PROPERTY

Property held jointly by the members of a family is called joint family property. It is purely a
creation of Hindu Law and those who own it are called coparceners. All members of the family
have one or the other right over it, which are not equal with respect to each other. Similarly,
all family members cannot contribute towards the joint family corpus. Such property is owned
collectively by the coparceners, while non-coparceners have a right of maintenance out of the
joint family funds, and a right of residence in the joint family house.

ANCESTRAL PROPERTY

The term ‘ancestral’ denoted that the property had come to the joint family from an ancestor,
hence it signifies the pre-existence of the property within the family, or with the ancestor of
the family and with reference to Hindu Law, two things are taken into consideration - (i) who
was the ancestor and (ii) what was the mode of devolution of the property from this ancestor
to the joint family members. The term ‘ancestor’ here refers to three immediate paternal
ancestors in a whole male line i.e., father, grandfather and great-grandfather.11 With respect
to the mode of devolution of this property, where the property comes to the joint family by

9
Kounla v Ram Huree (1827) 4 Beng Sel R 196
10
Mulla's Principles of Hindu Law, 246 (13th Edition)
11
Bhagwandas v Roshanlal 1981 HLR 194.
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inheritance12 from these three ancestors, or in some cases, even by Will, it will be termed as
joint family ancestral property.

SEPARATE PROPERTY OF COPARCENERS THROWN INTO THE COMMON

COPARCENARY STOCK

In case where some joint family property is owned collectively by the joint family, the
coparceners can pool in their separate property, throw it in what is called “common stock”,
with a clear intention to deprive themselves of their individual or exclusive control over it 13
and such property will also be called joint family property. Female members and non-
coparcenary male members cannot throw their separate properties into common stock, but are
competent to realise their rights of maintenance, including marriage expenses and residence,
from the property that is thrown in by the coparceners into the common stock. It is not necessary
that the coparceners can pool in their separate acquisitions only in cases where the joint family
property is already in existence.14 Where the family does not possess any property at all, a
coparcener can, by a declaration, convert his separate property into joint family property.
However, once the property is so thrown into the common stock, the coparcener cannot claim
any better rights over it15 on the ground that he had substantially contributed towards the value,
and his rights will be on par with the rights of other coparceners. When a separated property is
either converted into coparcenary or is blended with the already existing joint family property,
an unequivocal and clear declaration is sufficient and it need not be accompanied with a
registered16 or stamped17 document.

There is no presumption in law that a coparcener would convert his separate property into
coparcenary property for the general benefit of the family or blend it into joint family property,
and therefore, a person who alleges that conversion or blending has taken place, must clearly
establish it.

12
Kundanbai v Satya Narayan (1950) ILR Nag 491.
13
KV Narayanan v KV Ranganadhan AIR 1976 SC 1715.
14
Subramaniya Iyer v Commissioner of Income Tax, AIR 1955 Mad 623
15
Tirumaliyappa v Shanmuganatha (1969) ILR 3 Mad 296
16
Hanumantharao v Commissioner of Wealth Tax (1970) 1 Andh WR 365.
17
Controller of Estate Duty v Satyanarayana 140 ITR 158.
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CHARACTERISTICS OF JOINT FAMILY PROPERTY

The incidents of coparcenary property were summarised by the Supreme Court in State Bank
of India v Ghamandi Ram.18The main incidents of a joint family property are -

1. Only a coparcener can hold joint family property. A non-coparcener cannot hold the
property as coparcenary property. Property in the hands of a sole surviving coparcener,
in the absence of female members of the joint family, is his separate property.
2. Joint family property devolves by survivorship, not succession. On the death of a
coparcener, his interest in the property is taken by the surviving coparceners under the
doctrine of survivorship, and the laws of inheritance do not apply. In the case of a sole
surviving coparcener, upon his death, the property goes by inheritance, to his legal
representatives.
3. Coparceners have a joint interest and a joint possession in joint family property.19 There
is collective title, collective possession and collective rights of disposal over it.
Therefore, there is no general right in favour of any coparcener to transfer it.
4. In the joint family property, the holder’s son, grandson and great grandson acquire a
right of ownership by birth and hence, a right to ask for its partition and demarcation of
their shares. An unauthorised alienation of the coparcenary property can be challenged
by them in court.
5. Although the joint family property is owned by the coparceners, it is enjoyed also buy
other members of the joint family who are not its owners. They have a right of
maintenance, residence, marriage expenses etc.

ALIENATION OF JOINT FAMILY PROPERTY

Alienation is one if the basic incidents of ownership. The term refers to the transfer of property
inter vivos, such as by sale, mortgage etc. Where a property is owned by more than one person,
no single person can acquire the power to alienate the whole of it, unless and until other co-
owners expressly authorise him to do so. With respect to a joint family property, the Karta is
entrusted with its management but he only has an interest in it just like the other coparceners
and he can only transfer/sell the property if the other coparceners give consent to him. Such a
transfer will be binding on the interests of all the members. But if one or more coparceners
withhold consent, or where coparceners are incapable of giving a valid consent, ordinarily the

18
AIR 1969 SC 1330.
19
Katama Natchiar v Rajah of Sivagunga (1863) 9 MIA 539.
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property cannot be transferred. Joint family property can be alienated by Karta only in three
cases -

i) Apatkale (Legal necessity)

ii) Kutumbarthe (Benefit of estate)
iii) Dharmarthe (Performance of religious and indispensable duties)

SEPARATE OR SELF-ACQUIRED PROPERTY

Self-acquired property, in A Hindu, even if he be joint, can possess separate property.20 Such
property belongs exclusively to him. No other member of the coparcenary, not even his male
issue, acquires any interest in it by birth. He is free to alienate the property in any way he
wants. He may sell it,21 make a gift of it, or bequeath it by will to anyone he wants to.22 The
concurrence of his sons is not required for him to sell the property.23 He may even unequally
distribute such property among his sons.24 Such property is not liable to partition25and on his
death intestate, it passes to his heirs by succession and not by survivorship to the surviving
coparceners.26

It is one of the fundamental principles of Hindu law that the property acquired by a Karta or a
coparcener with the aid or assistance of joint family assets is impressed with the character of
joint family property. To constitute self-acquired property in the hands of the Karta or the
coparcener it should have been acquired without the assistance or aid of the joint family
property. In other words, the test of self-acquisition by the Karta or the coparcener is that it
should be without detriment to the ancestral estate.27 This principle is based on the original
text of Yanjavalkya who, while dealing with the property not liable to partition, states:

"Whatever else is acquired by the coparcener himself, without detriment to the father's estate,
as a present from a friend or a gift at nuptials, does not appertain to co-heirs. Nor shall he,
who received hereditary property which had been taken away, give it up to coparceners; not
what has been gained by science" (Yajnavalkaya 2, verses 119-120).

20
Haihar Sethi v Lalukishore Sethi AIR 2002 Ori 110.
21
Muddun Gopal v Ram Buksh (1863) 6 WR 71.
22
Rao Balwant Singh v Rani Kishori (1898) 20 All 267.
23
Muddun Gopal Ram Buksh (1863) 6 WR 71.
24
Bawa Misser v Raja Bishen (1868) 10 WR 287.
25
Lochun Singh v Nemotharee Singh (1973) 20 WR 170.
26
Katama Natchiar v Rajah of Sivagunga (1863) 9 MIA 539.
27
K.S. Subbiah Pillai And Co. v Commissioner of Income-Tax 1984 147 ITR 87 Mad
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It is of the utmost importance to remember that separate or self-acquired property, once it

descends to the male issue of the owner becomes ancestral property in the hands of the male
issue who inherits it. Thus, if A owns separate or self-acquired property it will pass on his death
to his son B as his heir. But in the hands of B it is ancestral property as regards his sons. The
result is that if B has a son C, C takes an interest in it by reason of his birth and he can restrain
B from alienating it, and can enforce a partition of it as against B.

CHARACTERISTICS OF SEPARATE PROPERTY

Property acquired by a Hindu male or female, a coparcener or a non-coparcener, in his/her

individual capacity or through individual efforts and without detriment to coparcenary
property, is called separate property. It has five basic features:

1) Every Hindu can own separate property. It is not necessary that he/she must be a
member of a Hindu joint family. Even a single individual, male or female, can possess
separate property.
2) The owner enjoys an absolute ownership over the property, with absolute powers over
its disposal, inter vivos or through a Will. No one else can either claim any right of
partition or ownership or possession over it, including even his own sons, without his
consent.28 The right of son over the separate property of his father can be described as
a mere specs successionis (i.e. the chance of an heir to succeed to the property of the
father). It is a bare chance and not a certainty as the property may be disposed of by
the owner and there might not be anything left for the son to succeed, or the son may
die during the lifetime of the owner.
3) In separate property, the owner alone has the right to possess and enjoy the property
and no one else can claim to possess and enjoy it without the permission of the title
holder.
4) On the death of the owner, the separate property of a person goes by inheritance or
intestate succession, or by testamentary succession in case the owner dies after
making a Will. The doctrine of survivorship does not apply to separate properties at
all.
5) The separate property of a person can be converted into coparcenary property by a
coparcener, without the consent of other coparceners, by a voluntary and intentional
act of throwing in the property into the common, joint family stock. The only

28
Dipo v Wassan Singh AIR 1983 SC 846
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requirement is that the intention for such blending must be clear. A female can make a
gift of her separate property29 to the joint family as whole, and in that case, the
property so gifted would become joint family property.

ACQUISITION OF SEPARATE PROPERTY

Property that is acquired by a Hindu in his individual capacity, without any detriment to the
joint Hindu family funds, would be his separate property. It includes the following:

i) Gains of learning - All acquisitions made by means of learning are declared by the
Hindu Gains of Learning Act, 1930, to be the separate property of the acquirer.
ii) Property received by way of prize or scholarship
iii) Share on partition - Property obtained as his share on partition by a coparcener who
has no male issue
iv) Property held by sole surviving coparcener - Property held by a sole surviving
coparcener, when there is no widow in existence who has the power to adopt.30
v) Inheritance by way of an obstructed heritage31 i.e. property inherited by a Hindu
from a person other than his father, father’s father or father’s father’s father.
vi) Gift - Property gifted32 or bequeathed to him33 by any person is the separate property
of the donee, unless the donor or the testator expressly makes it a coparcenary
property
vii) Government grants - Property granted by government to a member of a joint family
is the separate property of the donee unless a contrary intention is not manifested34
viii) Property acquired through adverse possession35
ix) Separate earnings - Salary and remuneration received in a job or an avocation
x) Property that cannot be called coparcenary property due to any reason whatsoever.

GAINS OF LEARNING

An important species of self-acquired property in Hindu Law is what is known as gains of

learning or gains of science, also known as vidhyadhana in the ancient texts. The term learning
signifies education, whether elementary, technical, scientific, special or general, and training

29
Satyendra Kumar v Commissioner or Income Tax (1983) 140 ITR 840
30
Bachoo v Mankorebai (1907) 31 Bom 32.
31
Sirtaji v Algu Upadhiya AIR 1936 Ori 331.
32
Appan Patra v Srinivasa AIR 1918 Mad 531.
33
Arunachalam Mudaliar v Murugantha AIR 1953 SC 495.
34
Katama Natchiar v Rajah of Sivagunga (1863) 9 MIA 539.
35
Jamarathbee v Pralhad (1978) Mah LJ 204.
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of every kind which is usually intended to enable a person to pursue any trade, industry,
profession or a vocation in life. The term gains of learning means all acquisitions of property
made substantially by means of learning.

The general rule is that any property or income acquired with the aid of joint family funds or
with detriment to the joint family property, would in itself, become joint family property. There
are a few exceptions to this rule. Hindu Gains of Learning Act, 1930 is one of them.

On the question, as to whether gains of learning, where learning was imparted at the cost of
joint family funds, should be the separate property of the acquirer or coparcenary property,
prior to 1930, there was a conflict of judicial opinion. Some courts tried to create a distinction
between primary education and special learning, between gains as a direct result of learning
and as an indirect result, or gains acquired due to the special skills of the person, etc., but the
predominant view was that the income earned by a member of the joint family, by practising a
profession or occupation requiring special training, was joint family property, if such training
was obtained by the member with the help of joint family funds.36 Accordingly it was decided
in the case of Gokul Chand v. Hukamchand37 that income earned by a member of joint family
by practice of arty occupation requiring special training was joint family property and partible
if such training was imported at the cost of family expenses.

After 1930, the position is governed by the Hindu Gains of Learning Act, 1930. This Act has
removed the anomalies existing under the previous law, and it is now provided that
notwithstanding any custom, rule or interpretation of Hindu Law, gains of learning are to be
the exclusive and separate property of the member of the joint family who acquires them, even
if—

(a) His learning had been (in whole or in part) imparted to him by any member of his family,
or with the aid of the joint funds of the family, or with the aid of funds of any member of the
family; or

(b) He himself or his family had, while he was acquiring such learning, been maintained or
supported (wholly or in part) by the joint funds of the family, or by the funds of any member
of the family.

36
Lakshman v Jannabhai (1882) IRL 6 Bom 255
37
AIR 1921 PC 35.
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MOHAMMEDAN LAW

Mohammedan law of inheritance doesn’t discriminate between ancestral property and self-
acquired property. There is no such thing as ‘Joint Mohammedan Family’ as a separate entity
in Mohammedan law.38 The owner of the property has absolute dominion, for the time being,
over all the property which he possesses, irrespective of how the property has been acquired
i.e. whether he acquired the property himself or whether it devolved upon him by inheritance.
He can alienate the property in any manner he wants, provided operation is given to the
transaction during his lifetime. It is only when the dispositions are intended to take effect after
the death of the owner or are made when he’s suffering from a malady which creates in his
mind the fear of death that his power of disposition is limited by the right of his heirs and
restricted to a third. 39 Decisions in a number of cases including Abdul Rashid v. Sirajuddin40,
Ma Khatun v. Ma Bibi41, and Hasan Ali v. Nazo42 have laid down that the right of an heir -
apparent or presumptive - comes into existence for the first time on the death of the ancestor,
and he is not entitled until then to any interest in the property to which he would succeed as a
heir if he survived the ancestor. Where two sons inherit the property of their father, they take
the property as tenants-in-common and not as joint tenants.43 Their shares are fixed and even
if they stay together, they do not form a joint family. Thus, exclusive ownership with full
powers of alienation is an essential feature of ownership of property under Muslim law.

CONCLUSION

Thus there are a lot of differences between joint family property and self-acquired property.
Unlike a separate property where the title and enjoyment vest in the same person, in a joint
family property, the title vests in coparceners but the right of enjoyment is with all the joint
family members. Also, unlike separate property or exclusive property that cannot be explained
by any other character or description, whether it is seen with respect to the descendants of the
owner or by his collaterals or by strangers to the family, the coparcenary property changes its
character depending upon who the claimant is. A person acquiring property from his male
ancestors, holds the same as ancestral property or joint family property, only with respect to

38
D Raja Ahmed v Pacha Bai (1969) 1 Andh WR 255
39
The law relating to gifts, Chapter 1, Volume 1, Mohammedan Law by Syed Ameer Ali, IV Edition, reprint
1985.
40
AIR 1933 All 206.
41
AIR 1933 Rang 3
42
[1889] ILR 11 AIR 456.
43
Hakim Rehman v Mohammad Mohmood Hassan, AIR 1957 Pat 559.
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his lineal male descendants and the same property will be called his separate property if there
are no lineal male descendants, i.e. sons, grandsons and great grandsons.44 On the death of the
holder of such property, only the above mentioned male lineal descendants who are entitled to
claim the benefit of the doctrine of survivorship (only these descendants can ask for a partition
of the property during his lifetime). In the absence of such descendants, neither a right of
partition, nor a right to claim the property by survivorship on his death is available to the male
collaterals. The property goes by succession in such a case. Also, the owner of a separate
property can dispose of the property in whichever way he wants without consulting anyone
else which is not the case with joint family property.

44
Adjoodhia v Kashee Gir (1872) 4 NWP 31
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BIBLIOGRAPHY

COMMENTARIES
1. S K Mitra, Mitra On Hindu Law (Millennium ed., 2008)
2. Dindhah Fardunji Mulla, Principles of Hindu Law (20th ed., 2007)
3. Paras Diwan, Modern Hindu Law (13th ed., 2000)
4. S A Desai, Mulla’s Hindu Law (18th ed., 2001)
5. Poonam Pradhan Saxena, Family Law Lectures: Family Law II (2nd ed., 2007)
CASES CITED
Abdul Rashid v. Sirajuddin ........................................................................................................ 3
Adjoodhia v Kashee Gir (1872) 4 NWP 31 ............................................................................... 7
Appan Patra v Srinivasa AIR 1918 Mad 531............................................................................. 9
Arunachalam Mudaliar v Murugantha AIR 1953 SC 495. ........................................................ 9
Bawa Misser v Raja Bishen (1868) 10 WR 287 ........................................................................ 7
Bhagwandas v Roshanlal 1981 HLR 194. ................................................................................. 5
Chowdhry Ganesh Dutt v Jewach (1904) 31 1A 10. ................................................................. 4
Commissioner of Income Tax v Luxminarayan, AIR 1935 Bom 412. ...................................... 3
Controller of Estate Duty v Satyanarayana 140 ITR 158 .......................................................... 6
Dipo v Wassan Singh AIR 1983 SC 846 ................................................................................... 8
Gokul Chand v. Hukamchand .................................................................................................. 10
Haihar Sethi v Lalukishore Sethi AIR 2002 Ori 110. ................................................................ 7
Hanumantharao v Commissioner of Wealth Tax (1970) 1 Andh WR 365................................ 6
Hasan Ali v. Nazo ...................................................................................................................... 3
Jamarathbee v Pralhad (1978) Mah LJ 204. .............................................................................. 9
Janakiram v Nagamony AIR 1926 Mad 273. ............................................................................ 4
K.S. Subbiah Pillai And Co. v Commissioner of Income-Tax 1984 147 ITR 87 Mad ............. 8
Katama Natchiar v Rajah of Sivagunga (1863) 9 MIA 539 ...................................................... 9
Katama Natchiar v Rajah of Sivagunga (1863) 9 MIA 539. ..................................................... 6
Kundanbai v Satya Narayan (1950) ILR Nag 491 ..................................................................... 5
KV Narayanan v KV Ranganadhan AIR 1976 SC 1715. .......................................................... 5
Lakshman v Jannabhai (1882) IRL 6 Bom 255 ....................................................................... 10
Lochun Singh v Nemotharee Singh (1973) 20 WR 170. ........................................................... 7
Ma Khatun v. Ma Bibi ............................................................................................................... 3
Muddun Gopal v Ram Buksh (1863) 6 WR 71 ......................................................................... 7
Rao Balwant Singh v Rani Kishori (1898) 20 All 267. ............................................................. 7
Satyendra Kumar v Commissioner or Income Tax (1983) 140 ITR 840 .................................. 9
Sirtaji v Algu Upadhiya AIR 1936 Ori 331. .............................................................................. 9
Sri Ragbunada v Brozoa Kishor (1976) 1 Mad 69. ................................................................... 4
State Bank of India v Ghamandi Ram ....................................................................................... 6
Subramaniya Iyer v Commissioner of Income Tax, AIR 1955 Mad 623 ................................. 5
Tirumaliyappa v Shanmuganatha (1969) ILR 3 Mad 296 ......................................................... 5
V. Devaraj vs Jayalakhmi Amma (1971) 1 MLJ 429 ............................................................... 4
KKR Paul v Manoranjan Kar AIR 1968 Tripura 34…………………………………………..2
Makhan Lal v Sushma Ram AIR 1953 Cal 164……………………………………………….2
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Kounla v Ram Huree (1827) 4 Beng Sel R 196………………………………………………3

D Raja Ahmed v Pacha Bai (1969) 1 Andh WR 255………………………………………...10
Hakim Rehman v Mohammad Mohmood Hassan AIR 1957 Pat 559……………………….10
Bachoo v Mankorebai (1907) 31 Bom 32……………………………………………………..8