THE EVOLUTION OF HINDU LAW ON MITAKSHARA JOINT FAMILY K.

Anup Koushik INTRODUCTION Society is governed by law, the culture and the family are the basic structural and customary laws that govern the society. When we study the society, family and culture as concepts we will have to look how the law evolved in relation to theses concepts. To study the laws relating to the concept of family we have to study their evolution, transformation, development. This objective may be served by looking in to the three kinds of laws as mentioned in this regard. Mitakshara law which mainly governs the Hindus of this country falls in to all the three above mentioned categories. A BRIEF ON MITAKSHARA AND DAYABHAGA Mitakshara literally means a brief compendium. The work is not merely confined to specific commentary but encompasses within itself the quintessence of the Smriti Law and its precepts and injunctions giving it the colour of a digest. Vijnaneshwara explains the meaning of recondite passages. Supplies omissions and reconciles discrepancies by frequent references to other old expounders of law1, thus analysing the Yajnavalkya Smriti in great detail and synthesising the various Smriti texts. 1 Buddha Singh vs. Lalta Singh (1915) 37 All 604. deals with several important topics of law classifying them with reasonable precision without any antiquarian trifling or wild philosophical discussion. The intrinsic worth of this treatise made it a juridical work inspiring others to write commentaries on it2. The primary source of Hindu law is common to all Hindus and became the subject for subsequent commentators. With multiple commentators interpreting the same source, the difference in the finished works was inevitable. Added to this was the region wise acceptance of authority of superiority of a particular work and a comparative rejection of the other. Thus Mitakshara a commentary on the Yajnavalkya Smriti by Vijnaneshwara3 became the authority for the whole of India except parts of Punjab4 and Bengal. In Bengal also, the Mitakshara was received as of high authority except with respect to those points on which it conflicted with Dayabhaga that is of paramount authority in Bengal. The modern Hindu law is in two parts. One, codified Hindu law, and the other is uncodified Hindu law. The former lays down a uniform law for the Hindus tempered marginally by custom in two areas, marriage and divorce and adoption. In the codified part of Hindu law, the schools have no relevance. But the schools of Hindu law are still relevant; more or less, the same way as they were before codification5. The schools of Hindu law emerged with the emergence of the era of commentaries and digests. The commentators and the digest writers put their own 2 See supra note 1. 3 Surjit Lal Chhabda vs. Commissioner of Income Tax (1976) 2 ITR 164. 4 Punjab was governed by the customary law. 5 JOHN MAYNE, HINDU LAW AND USAGE: Fourteenth Edition (11 ed., Bharat

Law House, New Delhi) (55). gloss on the ancient texts, and authority of some have been received in one and rejected in the other part of India, schools with conflicting doctrines arose. The two major and main schools in India are Mitakshara and Dayabhaga. The Mitakshara School owes its name to Vijnaneshwaras commentary on the Yajnavalkya Smriti by the name of Mitakshara6. Mitakshara literally mean a brief compendium. The Dayabhaga School owes its origin to Jimutavahanas digest on leading Smritis by the name of Dayabhaga. The Mitakshara School prevails in the whole of India except Bengal and Assam. The Dayabhaga School prevails in Bengal and Assam7. The Mitakshara is not merely a running commentary on Yajnavalkya Smriti but it is the digest of practically all the leading Smritis, and deals with all the titles of the Hindu law, where as Dayabhaga deals only with inheritance and the partition. Major differences between Mitakshara School and the Dayabhaga School These both schools fundamentally differ on certain matters. The basic differences between the two are: Law of Inheritance The Mitakshara School bases its law of inheritance on the principle of propinquity (nearness of blood-relationship or community of blood), while the Dayabhaga 6 An ascetic also mentioned as bearing the name of Vinana Yogin of Kalyanapura in the present Hyderabad state. He was a contemporary of King Vikramaditya 10761127 AD. 7 Rohan vs. Lucheman AIR 1976 Pat 286. School bases its law of succession on the principles of religious efficacy or Spiritual benefit. Principle of propinquity means that one who is nearer in blood relation succeeds. This is, purely, a secular principle. The principle of the religious efficacy or spiritual benefit means that one who confers more religious benefit on the deceased is entitled to inheritance in preference to others who confers less spiritual benefits. The conferment of the religious benefit is based on the doctrine of offering of obligations or pindadana to the deceased. Law of Hindu Joint Family Mitakshara propounds the doctrine of sons right by birth in the joint family property (females have also been brought into the preview of this law by the amendment that has been made in 2005). This doctrine after the 2005 amendment means that any male or female heir of the family will have the birth right and acquires an interest in the joint family property which by partition, may be, at any time, converted into separate property. The doctrine means that each person on his/her birth acquires an equal interest with his/her father in the joint family property. This is the principle that devolves from the doctrine of survivorship. On

the other hand, under Dayabhaga School, the doctrines of sons and daughters birth right and the devolution of the property by survivorship do not find any place. Under Dayabhaga sons have no right by birth in any property, and all properties evolve by inheritance. So long as the father is alive, he is the master of all properties whether ancestral or self acquired. The concept of joint family property under the Mitakshara School implies the notion of community of ownership and unity of possession. This expression means that before partition, no individual coparcener may say that he owns so many shares in the joint family property. The interest of each coparcener is a fluctuating interest, the deaths may augment it, birth may diminish it. In the case of Dayabhaga there is no concept of birth right. Coparceners have specified and ascertained shares in the joint family property and their interest does not fluctuate on births and deaths in the family. Under both the schools the principle of unity of possession is the same. MITAKSHARA HINDU JOINT FAMILY The institution of a Hindu joint family under the Mitakshara School of Hindu Law practiced in all the states except Kerala and West Bengal is unique and has no parallel in any ancient or modern system of law and jurisprudence. I believe that in the ancient days, members of the family secure food for the family secure food respectively, put it in a single pot to cook and eat which gives rise to the definition of common hutch pot. Under the above school of law, it was always presumed that every Hindu Family was a Joint Hindu Family sharing common food and worshipping together unless the contrary was proved. There was no escape for a Hindu (under this school) from being a member of the Hindu joint family. The traditional Hindu Law (uncodified) still provides the law relating to Hindu joint family, coparcenary, partition, etc. Only in respect of marriage, succession, minority, guardianship, adoption and maintenance has the Hindu law been codified. It is needless to say that love and affection on the part of the family or manager of the family towards the junior members of the family, that makes him to earn for his family members and bring them up. It is in respect and regard that the junior members of the family towards the head of the family, that keeps the family joint as long as love and affection and mutual respect in the family exist. Joint hindu family is a normal condition of the Indian society. Ranging from grand father, father and sons constitute a Hindu joint family. So long as the grand father or the father is alive they would manage the joint family property and the joint family. The manager of the joint family is called karta. A certain section of members of the joint family who are considered as the part of the coparcenary system has got a birth right in the joint family property. Any member of joint family may acquire property without the support of joint family property. The member who acquires separate property is entitled to possession and enjoyment of his property. As far as joint family property is concerned, any of the coparceners of the joint family may

seek partition and separate possession of his share of his joint family property. There is a presumption that the family consisting of father and sons are joint but joint family property may possess or may not possess joint family property. If any coparcener of the joint family seeks to separate himself from the family, he may get himself separated by taking his share. Any member of the joint family may ask for the maintenance from the joint family property. After the death of the father, the eldest becomes the manager or karta of the family. In the absence of both father as well as the eldest son, next eldest member is at liberty to manage the affairs of the joint family property. He may contract debts for family necessities and they will be binding upon other members of the family. The manager or the karta is also entitled to mortgage or sell the joint family property to discharge the family debts for the benefit of joint family. Joint family is a special program for the purpose of coexistence in Hindus. In Muslims and Christians who profess their personal laws do not have joint family, or the concept of joint family property. If the grandfather dies, his property devolves over to the father and such property is his separate property. His sons do not have a right by birth as found in Hindu joint family. The history of the emergence of the Hindu joint family is the history of the curtailment of absolute power of the father. Fathers power of life and death over his children comes to an end. His power of sale and gift is also greatly curtailed. Composition of Hindu Joint Family A Mitakshara Hindu joint family consists of a common male ancestor, his lineal male descendants up to any generation below and their wives, widows and unmarried daughters. The death of the common ancestor does not mean that the joint family will come to an end. Upper links are removed and the lower ones are added and in this manner, so long as the line doesnt become extinct, the joint family continues indefinitely, almost till perpetuity. On whether female members alone may constitute a Hindu joint family, the Supreme Court, in Sitabai vs. Ramachandra8 has observed that there may be a joint family where there are widows, even on the death of sole surviving coparcener (member of Hindu joint family), 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. Earlier, in Narendranath vs. Commissioner of Wealth Tax9; the Supreme Court has held that the 8 1969 INDLAW SC 113, 1970 AIR (SC) 343. 9 1969 INDLAW SC 299, 1970 AIR (SC)14. term Hindu undivided family in the Wealth Tax Act, 1957 is used in the sense in which a joint family may consist of a single male member and his wife and daughters. A single surviving male member alone may not constitute a Hindu joint family. However, when he gets married, he and his wife together constitute a Hindu joint family. There may be a larger Hindu joint family in which there may be smaller Hindu families for each branch tracing to a common male ancestor of the lower

generations. Hindu undivided family (HUF) in the tax laws has more or less the same meaning as Hindu joint family. A Hindu joint family is not a corporation. It has no legal personality of own distinct land separate from its members who constitute it. In other words, it is not a juristic person10. It is a unit and in all its affairs are represented by its karta. It is essentially a creature of law and with in the in fold no outsider, except by adoption or marriage may come in11. Joint family is different from the composite family. Where two or more families under an agreement, express or implied, come together to live and work together, and pool their resources, keep the earning and gain in a common pool, shoulder common risks and utilise the resources for the use of the entire composite unit, it is commonly called a composite family. Composite family is a creature of custom12. 10 Ram Kumar vs. Commissioner income tax 1953 AIR (All) 150. 11 Babubhai vs. Ujmal 1937 AIR (Bom) 446. 12 Anchuru vs. Gurijala 1961 AIR (AP) 534. Normally a Hindu joint family is joint in estate, but there is no presumption that the properties held by a person of the joint family are joint family properties13. Presumption of Hindu joint family The general principle undoubtedly is that a Hindu family is presumed to be joint unless the contrary is proved. There is no presumption on the plaintiffs side too that because one member of the family separated himself there has been separation with regard to all. It would be a question of fact to be determined in each case upon the evidence relating to the intention of the parties whether there was a separation amongst the other coparceners or that they remained united. The burden would undoubtedly lie on the party who asserts the existence of a particular state of things on the basis of which he claims relief14. The general principle is that every Hindu family is presumed to be joint unless the contrary is proved. But, this presumption may be rebutted by direct evidence or by course of conduct. It is also stated that there exists no presumption when one member separates from other the latter remain united, whether the later remain united or not must be decided on the facts if the each case15. It is well settled that although there is a presumption under the Hindu law that a family is joint but there is no such presumption that a joint family also possesses joint family property. In other words, where the plaintiffs claim a particular item of the property to be joint family property they must prove that there was sufficient nucleus in the joint from which the property in question could have been 13 Shadi lal v Lal Bahadur 1933 AIR (PC) 85. 14 Bhagawati Prasad vs. Rameshwari kuer 1951 INDLAW SC 42, 1952 AIR(SC) 72. 15 Bhagavan Dayal vs. Rewti Devi 1961 INDLAW SC 437, 1962 AIR(SC) 287.

or may have been acquired. Once a plaintiff proves that the joint family was possessed of sufficient nucleus from which the property in dispute may have been acquired, the onus shifts on the defendant to show that the property was not a joint family property16. It is well established law that those who allege that the members of joint Hindu family had separated must prove, unless it is admitted, that there was a separation at some material time. The presumption until contrary is proved is that the family continues to be joint17. Presumption of Jointness It is well settled that when the acquisition is made in the name of a coparcener of a joint family having sufficient nucleus, there is a presumption that the properties standing or acquired in the name of that male member are joint family properties. That presumption will arise so long it is not shown that the said properties are the separate properties of that particular member. But there is no such presumption in the case of acquisitions made in the names of female members of the joint family18. It is quite evident that from the joint record one may presume that such widows were not merely maintenance holders but they have some interest in the property. But such joint record is not conclusive evidence of the fact that the said widows had title to or were co-sharers of the property mentioned in the said record 16 Inderjeet Singh vs. Krishenlal 1963 AIR(J&K) 46. 17 Savitri Devi vs. Jiwan Chaduhary 1960 AIR(Pat) 548. 18 Gava devi vs. Gangathar Malik 1978 AIR(Ori) 107. of rights. The above presumption in their favor may not stand if facts and circumstances on record nullify that presumption19. In order to prove partition, it must be established that the parties altered and intended to alter their title to the property and that there was a definite and unambiguous indication by the members of the family to separate and to enjoy their respective shares in severalty20. The strong presumption which existed about 25- 30 years ago is no longer as strong as it used to be. Lack of brotherly feelings, lack of willingness of the earning members to support the non earning members of the family, desire to live independently, certain recent legislations, cost of living and many other factors have contributed towards the change in the attitude among the members of the Hindu family21. But at the same time presumption of joint-ness exists even in the cases of the separate residence22. CAN ONE CREATE A HINDU UNDIVIDED FAMILY (H.J.F) BY GIFT? Hindu Law had always considered a Hindu joint family as an incident of status and not created by contract. However, it does not always require survivorship or partition of ancestral nucleus as a pre-requisite for a Hindu joint family. But the development of Hindu law in recent times even apart from the various legislations under Hindu

Code has resulted in what would have been unthinkable in the edicts of ancient law. One such development is partial partition, which was unknown to ancient law. But in view of its effect in splitting up taxable income, partial partition made after 31 19 Padan Malik vs. Sakhia Bewa 1978 AIR(Ori) 172. 20 Ram Bahadur Nath Tiwary vs. Kedar Nath Tiwari 1977 AIR(Pat) 59. 21 Sant Narayan Pandey vs. Dhurva Narain 1959 AIR(All) 22. 22 Har Prasad vs. Ram Devi 1964 AIR(All) 64. December 1978 was derecognised for income-tax purposes, though it is still valid under general law. Yet another development is the effect of Hindu Gains of Learning Act, 1930, which statutorily treated salary and other income including professional income earned by a Hindu due to his learning at the cost of the family, as his individual income, while such gains of learning under the Hindu law earlier to this legislation was to be treated as that of joint family. Yet another development has been the recognition of creation of a Hindu joint family by a Will or a gift. Ordinarily a recipient takes it only as his individual property. It is however, possible for a joint Hindu family to receive gifts as long as the intention of the donor to benefit the Hindu joint family and not the individual is patent and clear. In M.P. Periakaruppan Chettiar v Commissioner of Income Tax23 the Supreme Court found that a mere statement in the gift deed to the effect that the gift was in favour of the donees and their respective heirs, executors, administrators and assigns did not evidence any intention to make a gift to the joint family. All the same, this decision recognised that there could be a gift to the joint family, if appropriately worded. Ordinarily, the presumption in any gift is that the intention is for the personal benefit of the donee. The Supreme Court has recognised the principle that there may be a gift in favour of a Hindu Undivided Family, if such intention is clearly expressed in the case24 of in following words: As the law is accepted and well settled that a Mitakshara father has complete powers of disposition over his self-acquired property, it must follow as a necessary consequence that the father is quite competent to provide expressly, when he makes a gift, either that the donee would take it exclusively for himself or that the gift would be for the benefit of his branch 23 1975 (99) ITR 1. 24 C. M. Arunachala v Muruganatha, 1953 INDLAW SC 60, 1953 AIR(SC) 495. of the family. If there are express provisions to that effect in deed of gift or a will, no difficulty is likely to arise and the interest, which the son would take in such property, would depend upon the terms of the grant. If, however, there are no clear words describing the kind of interest which the donee is to take, the question would be one of construction and the court would have to collect the intention of the donor from the language of the document taken along with the surrounding circumstances in accordance with the well-known canons of construction. This principle was applied by the Supreme Court in Commissioner of Income Tax v K. Satyendra Kumar25, when it upheld the High Court's decision that the funds made available by the mother to the

senior most members for use in business for the benefit of all members of family were to be treated as joint family property. This aspect of Hindu law has been used as a measure of tax planning by creating HUF by way of gift even to a minor child in clear terms that it must be enjoyed by him as the karta of a Hindu joint family. Since he is an individual, it is to be treated as only individual property with his income to be clubbed with that of either parent with higher income. On his attaining majority, he is entitled to treat it as his individual property in a separate assessment. On his marriage, according to the preponderant view of the High Courts, it could be treated as assets of Hindu joint family on the basis of the inference that he was holding it on behalf of the potential family, which was yet to emerge. Creation of a Hindu joint family by conferment of status by making bequest by way of Will or a Gift in unequivocal terms, whether such family was already in existence or not, is an accepted position of law allowed to persist for tax purposes over the years enabling splitting up of taxable income. 25 1998 (232) ITR 360 (SC). CONCEPTS OF JOINT FAMILY PROPERTY, ANCESTRAL PROPERTY AND SELF ACQUIRED PROPERTY Joint family property One way of stating the principle of the survivorship, is to say that on the death of the coparcener, nothing happens, at all to the coparcenary property, but the property remains to continue as the property of the family, with one coparcener, less, but with the other coparceners alive. Basically under the Mitakshara School, the joint family property devolves by survivorship. The fact that the mitakshara recognises proprietary rights in respect of joint family property only of the male while conferring only such rights as right to maintenance the females doesnt mean that a Mitakshara joint family must consist only of men and not of women also. It is also clear that the character of the family property doesnt change by reason of the fact it may come to be held by a single male coparcener because if and when the male coparcener either begets or adopts a son or the widow of the deceased coparcener makes an adoption, the son so born or adopted acquires a right by birth or adoption in that property26. The existence of the joint family property is not a prerequisite to constitute a joint family. There is no presumption that the property held by a member of a joint Hindu family is joint. It is for the person asserting that any item is joint to prove it to be so. It is not sufficient to show that the family possessed some joint property. What is essential is that the property must be of such a nature and value as to form 26 S. Melagiriyappa vs. Lalithamma 1961 AIR (Mys) 152. the nucleus of the acquisitions claimed to be joint. It is only when this is established the onus is shifted on to the person asserting exclusive title to the property27.

It is also well settled that when members of the joint family by there joint labour do the business and acquire properties, the properties so acquired in the absence of the intention to a contrary effect would be the joint family properties28. It is a well established doctrine in the Hindu law that property which was originally self-acquired may become joint property if it has been voluntarily thrown by coparcener into joint stock with the intention of abandoning all separate claims upon it. But the question whether the coparcener has done so or not is entirely a question of fact to be decided in the light of all the circumstances of the case. It must be established that there was a clear intention on the part of the coparcener to wave his separate rights and such an intention will not be inferred nearly from acts which may have been done from kindness or affection29. It is also a well settled principle that a property acquired by causing detriment to the ancestral property would be joint family property. If, for instance, ancestral property is sold and with the proceeds there of property acquired, the said property would be joint family property. If a fairly reasonable portion of the amount has been found to come out of the joint family property it will not be open to split up the property purchased in to two parts in proportion to the amounts representing the two funds and holding that 27 Appalaswamy vs. Suryanarayana Murthy 1957 AC 540. 28 Purna Bhai vs. Ranchhoddas 1992 AIR (AP) 270. 29 G. Narayana Raju vs. G. Chama Raju 1968 INDLAW SC 384, 1968 AIR (SC) 1276. one part is joint family property and the other is self acquisition. In such cases the entire property must be taken as a joint family property30. The character of any joint family property doesnt change with the severance of the status of the joint family and a joint family property continues to retain its joint family character so long as the joint family property is in existence and is not partitioned among the co-sharers. By a unilateral act it is not open to any member of the joint family to convert any joint family property into his personal property31. Doctrine of benefit of status would mean that the disposal of the joint family land by the manager with out any legal necessity and for the purpose of purchasing another land elsewhere which purchase has not been made and may not be made at all may not be held to be justified on the doctrine of benefit of the estate32. The law regarding the burden of proof with respect to joint Hindu family is well settled. Of course there is no presumption that a Hindu family merely because it is joint possesses any joint property. 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 the nucleus of the joint family property is either admitted or proved, any acquisition made by the member of the joint family is presumed to be joint family property. This is however subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired it is only after the possession of the

adequate nucleus is shown that the onus shifts on to the person who claims the 30 Bhimavarapu Subba Reddy vs. B. Nagireddy 1973 AIR (All) 184. 31 Bhagwant. P Sulakhe vs. Degamber Gopal Sulakhe 1985 INDLAW SC 271, 1986 AIR(SC) 79. 32 Nirmal Singh vs. Satnam 1960 AIR (Raj) 313. property as self- acquisition to affirmatively make out that the property was acquired with out any aid from the family estate. It is a settled principle that there is no presumption that joint family possesses joint property. Merely because a family is joint, every property purchased or held by its members is not a property of joint family. The burden of proving it to be so is on the party asserting it33. Ancestral property It is well settled that the ancestral property is the property inherited by a male Hindu from his father, fathers father or fathers fathers father. The property inherited by a person from other sources is his separate property. The property inherited from females may not be ancestral34. It is now settled that the term ancestral property must be confined to the property descending to his father from his male ancestor in the male line, and it is only in that property that the son acquires by birth an interest jointly with an equal to that of his father. It may be said that the only property that may be ancestral is property inherited by a male Hindu from any one of his three immediate paternal ancestors namely his father, fathers father or fathers fathers father; and the only persons entitled to an interest in it by birth are the sons, sons son, sons sons sons, of the inheritor. 33 Rajeshwari vs. Balchand Jain 2000 INDLAW MP 186 2001 AIR(MP) 179. 34 The Vijaya College Trust vs. Kumtha Co-operative Arecanut sales society ltd., 1994 INDLAW KAR 146, 1995 AIR(Kant) 35. Having regard to the fact that on an adoption into some other family the adopted person completely losses all his rights in the natural family, any property which he gets from the natural family subsequent to the adoption couldnt be treated to be the ancestral property in his hands. On adoption the person to whom he is adopted becomes the adoptive father and only property inherited from him there after could be called the ancestral property and any property got by him from his natural family will be in nature of gift from his natural family and not ancestral in his hands35. Property received in partition would remain ancestral property and son would acquire interest in said property by birth. It may not be a separate property only because allotment of the property was an obligation to discharge certain family debts36. It is open to a Mitakshara father to treat his self-acquired property as ancestral property and then proceed to allot the same to his sons as in a partition. Equally he may be treating his property as self-acquired and in the exercise of his power of

disposition over it, make a gift of this or that property of his own to each or some of his sons at his discretion and pleasure. The question in each case would, therefore, be one of the intentions of the father, which, will have to be gathered from the terms of the language that he has employed in expressing his wishes as to the disposition of the property. In ascertaining the intention, one must bear in mind that there must be no preconceived approach and the words will have to be read and understood in their plain meaning with out reference to any presumption of any kind. 35 Lakshi Ammal vs. Minakshi Ammal 1974 AIR(Mad) 294. 36 K. Pattamal vs. P.K. Kalyani 2001 AIR(NOC) 58(Mad). Self Acquired Property To understand this concept we need to look and understand the term self acquisition first. The property has been acquired by the junior member of the family. It is admitted that the member was not the karta of the family. Therefore, it is a case of junior member acquiring property in his own name. Therefore, it is to be seen whether this junior member availed of the nucleus of the joint family property and acquired this property. It is the competent to the manager of the family to allot to any individual member o portion of the family property to enable him to maintain himself out of his income. Any savings out of this income and the investments of such savings will be the part of the separate property of that member37. Self acquired property would loose its such character when what ever may be the extent of the contribution of the acquiring member himself out of his self acquired property fund if he takes the aid of any portion of the joint family property or the ancestral property in acquiring the property then that property would assume the character of the joint family property. If any help is taken from the joint family property that itself is sufficient to make that self acquired property the property of the family38. In the case of joint family the mere existence of a nucleus not enough to raise a presumption that all the properties possessed by its various members are joint. The presumption arises only if the nucleus is substantial and is such that is yield could 37 P. N. Venkatasubramania Iyer vs. P. N. Easwara Iyer 1966 AIR(Mad) 266. 38 Mangal Singh vs. harkesh 1958 AIR(All) 42. provide in whole or at any rate inconsiderable part the money necessary for acquiring the property in the question39. The property inherited by a person from any other relation except his father, fathers father and fathers fathers father, is his separate property and his male issue do not have any interest in it by birth. Thus the property inherited by a person from collaterals such as the brother, uncle etc. is his separate property40.

The expression separate property is used in antithesis to property not held in coparcenary. Indisputably what is not in the coparcenary property could be described as separate property. MITAKSHARA COPARCENARY A coparcenary is a narrower body of persons with in the joint family consisting of father, son, sons son and sons sons son. Before the amendment of the Hindu Succession Act, 1056, s. 6, in Hindu mitakshara law no female could be a coparcener. The mitakshara coparcenary is based on twin notions of sons birth right and devolution of property by survivorship. A coparcener has an interest by birth in the joint family property, though until partition takes place this is an unpredictable and fluctuating interest which may be enlarged by the deaths in the family and may be diminished because of births in the family. There is a community of interest and unity of possession. The nature of ownership in the mitakshara joint family is community ownership. No individual may say that he owns it or some property 39 See supra note 38. 40 Priti vs. Yatendra Kumar 1985 AIR(P&H) 238. belongs only to him; it is always familys property. One from the family may not declare that the property is his own when the property is family property. The remarkable feature of interest by birth is that the interest which a coparcener acquires by birth is not a specified or fixed interest. At no time before the partition it may be predicted that he is entitled to so much shares in the joint family property. One of the features of the mitakshara joint family system is that one is born with the property. The unique feature of mitakshara coparcenary system is that though all coparceners hold joint family property in communality, each coparcener enjoys several rights, including the right of disrupting the coparcenary by his unequivocal and unilateral right of dissolution of the joint family. Hindu coparcenary was a creature of the Hindu law, which could not be created by agreements of the parties, except in the case of reunion, a sub branch may also be a corporate unit, holding and disposing the family properties, subject to the limitations laid down by the law41. Coparcenary is a type of co-tenancy where property descends to two or more persons on the death of the owner. The Supreme Court, in Narendranath vs. Commissioner of Wealth Tax, has observed that a Hindu coparcenary is a much narrower body than the Hindu joint family; it includes only those persons, who acquire by birth an interest in the joint or coparcenary property, they being sons, grandsons and great-grandsons of the holder of the joint property for the time being. Like joint family, it consists of father and his three male lineal descendants. (The words lineal and descendants defined in the end of this part). 41 See supra note 37. A coparcenary may consist of brother, of uncle and nephew, of grandfather and grandson and so on, so long as one is not removed by more than four degrees (generations) from the last holder of the property. And if one is removed by more

than four degrees, one will not be a coparcener. Last holder means the senior most living lineal male ancestor. Ancestor means the person who really proceeded (stayed immediately before) in the estate, although that person may not be progenitor (originator) of the succession. In Hindu law, the term ancestor signifies a direct ascendant in the paternal or maternal line. Descendants refers to children, grand children and other issues of every degree of remoteness in descent. Descend means the passing of property to the heir or heirs without disposition by Will or by alienation in the form of gift, sale etc. Lineal means being in a direct descent, as between a man and his father; or between a man and his son. The following are treated as coparcenary property: (1) Property inherited from father, grandfather and great grandfather. (2) Property inherited from maternal grandfather is not ancestral property (but the Supreme Court in Makul vs. Manbhar held that the property inherited by a person from his maternal grandfather is not ancestral property vis--vis his descendants). (3) Property acquired on partition (property obtained through partition in a Mitakshara coparcenary will be joint family property in respect of his own son, grandson and great grandson). (4) Property obtained from a gift (gift of a self-acquired property of a father to his son constitutes a self-acquired property in the hands of a son). (5) Property jointly acquired by Mitakshara Coparceners (such an acquired property will be joint family property in which the sons will acquire an interest by birth unless it is intended to own it as coowners between themselves or as partners). (6) Property acquired in exchange for the joint family property. KARTA, MANAGING MEMBER IN THE FAMILY AND HIS POWERS The managing member or karta has not only the power to manage but also power to alienate joint family property. The alienation may be either for family necessity or for the benefit of the family estate. Such alienation would bind the interest of all the undivided members of the family whether they are adult or minors42. The power of manager for an infant heir to charge an estate not his own, under the hindu law a limited and qualified power it may only be exercised rightly in a case of need or for the benefit of the estate. The actual pressure on the estate, the danger to be inverted are the benefit to be conferred upon it, in the particular instance is the thing to be regarded43. The manager of a Hindu joint family has power to sell the family property not only for defensive purpose but also where circumstances are such that a prudent 42 Sunil Kumar vs. Ram Prakarsh 1988 INDLAW SC 311, 1988 AIR(SC) 576. 43 Kailash Nath vs. Tulsi Ram 1946 AIR(All) 349, approved in 1960 AIR(Mys) 231. owner of property would alienate it for a consideration which he regards to be

adequate44. The manager has no greater proprietary interest than any other coparcener, except that by reason of his position as manager, he has certain powers in relation to management and disposition of property. He is neither an agent nor a trustee of the family. He may act without the express consent of the other members when the act is within his legal authority. He may act without their consent where the act is necessary or incidental to the management of the Joint family property45. The eldest member of the family is presume to be the manager of that family under Hindu Law. A woman may very well act as the manager of the family. Position of female as manager is the same as that of a male manager of the family. Female acting as managers do have certain limitations when compared with male managers of the family46. Under the Hindu law coparcenership is necessary qualification for the managership of a joint family. A widow is not a coparcener, she has no legal qualifications to become the manager of the joint hindu family. A widow of a coparcener may not, therefore, be a karta of the Hindu joint family47. 44 Balmukund vs. Kamlawati 1964 INDLAW SC 425, 1964 AIR(SC) 1385. 45 Rajayya vs. Sangareddy 1956 AIR(Hyd) 200. 46 Ramkawal vs. Dudhanath 1960 AIR(Pat) 317. 47 Commissioner of Income Tax vs. Seth Govind Ram Sugar Mills 1965 INDLAW SC 284, 1966 AIR(SC) 24. The karta and manager had received any amount by sale of joint family property, he is liable to account for the same to the other members of the joint family. It may not be said that the liability of the karta for accounting accrued on the date of sale. The liability to account rises when a partition of the family property is to be effected among its members48. FEMALE HEIRS IN THE JOINT FAMILY So far as women are concerned prior to 1937 they were never allowed to inherit any kind of property from any one, that is they are not legal heirs along with along with sons. Mothers or daughters do not get the share. The mothers or daughters are entitled to the right of maintenance; they may not seek partition of joint family property. They may file a suit and demand for maintenance but may not call for partition .Wife may get maintenance till their death. Where as daughters may get maintenance till they get to be majors and get married. For the first time in the year 1937 Hindu womens right to property act was passed by the parliament. Under section 3 of the above mentioned act the wife is entitled to claim a share in the property only and not landed property. The year 1947 an amendment was made to the act by extending wifes right in agricultural land property also. Such right in the house property and agricultural land property is limited. She may enjoy the property for life time but do not have any right to transfer

the same property at her discretion, it is also called Widows estate. In the year1956 Hindu Succession act came into force, the important feature of the aforesaid act are:48 S. Krishnan vs. K. Narayana Iyer, AIR 1986 Ker 267. (1) The limited estate which a widow got under Hindu womens right to property act of 1937 and amendment act of 1947 became absolute property of the widow. The limitation has been taken away. The widow becomes the absolute owner of her share of property. (2) For the first time daughters are given a right of share in the joint family property. She gets equal share along with her mothers and brothers. The law at present which is in vogue, confers a right on the widow, on the sons and daughters right to equal share without any limitation. Female in a Joint Family Customary Hindu law with regard to inheritance, adoptions, partition and majority separate laws have been enacted so far as inheritance is concerned: (1) Hindu Women Right to Property Act, 1937; (2) Amendment Act of 1947; and (3) Hindu Succession Act, 1956 has brought about changes in Hindu law concerning inheritance. Under the Hindu Succession Act, 1936 as stated above amendment was made in the year 1985, conferring a right on the daughters to claim a share in the joint family property by way of partition . It is also called N.T. Rama Rao Act (Hindu Succession Amendment act of 1985) in the state of Andhra Pradesh. Hindu Succession Act, 1956 conferred a equal right on daughters with the sons when inheritance opens, that is, when the father dies. The enactment did not place the daughters on par with the son. The Amendment Act by Andhra Pradesh legislature confers a right on the daughter to claim a share even during the life time of the father that is, daughter is also provided with birth right to claim a share in the joint family share. Very recently in the may 2005 the parliament enactment amendment to Hindu Succession Act, 1956 on the same lines as the Andhra Pradesh a mendment of Hindu Succession Act, 1985 , thereby daughter in the entire country is given a right of share along with the son. So what was earlier conferred upon daughters in state of Andhra Pradesh is conferred upon the daughter through out the country. Hindu law consists of various aspects such as inheritance, adoption, partition, and gift. As stated above the concept of joint family is confined to Hindu community of all castes. So far as the certain aspects of joint families changes are made by adoption, separate acts such as Hindu Minority and Guardianship Act, 1956, Hindu Adoption and Maintenance Act, 1956, Hindu Marriage Act, 1956 and Hindu Succession Act, 1956. CONCLUSION The family is an arena in which virtually the entire range of human experience may take place. Warfare, violence, love, tenderness, honesty, deceit, private property,

communal sharing, power, manipulation, formal status hierarchies, egalitarian decision-makingall may be found within the setting of the family. And so, also, can a variety of educational encounters, ranging from conscious, systematic instruction to repetitive, moment-to-moment influences at the margins of awareness. Family is where we first learn to tell our toes from our nose. Family is where we first learn to learn. And, as if that werent enough, family offers a life-long educationwith free tuition. Learning from and with our family does not stop when we step into the world of grownups. From the cradle to the grave, we family members teach each other the lessons of life. Language is one of familys most precious and far-reaching teachings, affecting all subsequent learning, as well as social interaction and communication. Our first language is so deeply embedded in the experience of family life that it is known by a familial phrase: mother tongue. From the tongue to the pagefamilies give their children first a voice, and then the foundational skills for a life-time of literacy. Educational strategies and programs may complement the capacity of parents, grandparents and older siblings as the first teachers of a child, but they will never surpass the family in its power to influence the childs abilities and attitudes towards learning, language and literacy. These are gifts given by one generation to another. Values, attitudes, customs and a cultureall of these were first learned within our families and all of these will be mediated by our families throughout our lives. They teach us essential skills too: everything from counting to cooking, from riding our first bike to preparing for our first job interview. Joint families are like microcosms of an entire world. They are the first training grounds, where people learn interpersonal skills. People in joint families learn lessons of patience, tolerance, cooperation and adjustment. They also learn what it means to take collective responsibility. One for all and all for one. In a joint family a child learns and is reared by a number of people, thus dividing work, saving time and creating a spectrum of exposure and awareness. While in joint families, financial problems were shared by all the members of the family, as were financial gains, in nuclear families, financial problems often had to be shared independantly. The joint family set up encourages the setting aside of individual desires for the good of the family. Comprising the father, the mother and their children, the nuclear family threw the children and the parents together, for better or for worse, with no other family members in their space. Now the entire responsibility of what kind of an individual the child grew up to be, lay on the parents. And the differences between the two family set-ups started showing up starkly, in the personality of the child, as well as on the health, mental and otherwise, of the parents. The other features to get affected were the finances of a family, the quality of time spent together, their closeness, individuality, power equations etc.

From the above stated we may take the definitions and concepts of family, joint family and the unitary family. We see that the all the above mentioned three practices have their advantages and the disadvantages. From the above stated we may see that the joint family is the custom and the practice where it basically mean hierarchies and power equations and these hierarchies are very strong. This may put younger members of the family in a vulnerable position. Many a times one finds that there is a lot of resentment in the younger family members towards the older members. This resentment usually occurs when the younger generation feels that the older generation is not allowing it to acquire its own identity and status, separate from that of the older members. A joint family could function like a corporation or the army or any organisation where power is maintained by a few and hierarchy is important. These networks and power dynamics also create spaces for abuse and exploitation. The family is perceived as larger than the individual, so cases of child sexual abuse, domestic violence, or other forms of harassment within the family are not divulged or raised for fear of dishonoring the family name. In this kind of situation the law tries to consol and concludes certain issues and problems in the family. In the Hindu system the Hindu joint family is governed by Mitakshara School of law and this law lays down the principle structure on which the issues among the family members will be resolved and settled. Even though we think that the family is the place where the child born learns his first lessons, this child after certain period of time will be an individual who will be thinking about his/her status in the society, for this reason he/she will be looking forward to their rights and liabilities in the family first and then the society. At this point of time the issues with in the family will not be in a position to be dealt and settled by the members hence there comes the law and demarcates the rights of the members of the family by following the certain principle laid down by the smritis and had be provided the status of authorities by various commentators.