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Family Law Assignment 2016-17

DR. SHAKUNTALA MISRA NATIONAL REHABILITATION UNIVERSITY,

LUCKNOW

FAMILY LAW ASSIGNMENT


ON
TYPES OF PROPERTY UNDER JOINT HIMDU FAMILY

UNDER THE GUIDANCE OF Dr. VIJETA DUA TANDON

SUBMITTED TO: SUBMITTED BY:

Dr. VIJETA DUA TANDON DEVANAND PANDEY

ASSISTANT PROFESSOR B.COM.LLB(HONS)

FACULTY OF LAW 6TH SEMESTER

D.S.M.N.R.U D.S.M.N.R.U

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TYPES OF PROPERTY UNDER JOINT HINDU FAMILY
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TABLE OF CONTENTS

1. Introduction.......................3-4
2. Coparcenary..............................................................................................................5-6
3. Incidents of Coparcenership....................................................................................7-9
4. Types of Property..................................................................................................10-17
5. Conclusion..................................................................................................................18
6. Bibliography...............................................................................................................19

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INTRODUCTION

The Hindu joint family is a normal condition of the Hindu society. Its origin can be traced to
the ancient patriarchal system where the patriarch or the head of the family was the
unquestioned ruler, laying down norms for the members of his family to follow, obeyed by
everyone in his family, and having an unparallel control over their lives and properties. At the
root was the general family welfare or promotion of family as a unit for which personal
interests of the family members could be sacrificed. The ancient system generally treated the
property acquired by the members of the family as family property or the joint property of the
family with family members having one or the other right over it. With gradual
transformation of the society and recognition of the members of the family as independent in
their own right, concept of separate property and rules for its inheritance were developed.
This dual property system, though considerably diluted, has survived the lashes of time, the
judicial and legislative onslaught and the Hindu society still recognises the joint family
property as unique entities having no similar concept alive anywhere else in the world1.

A Hindu Joint Family consists of all male members descended lineally from a common male
ancestor together with their mothers, wives or widows and unmarried daughters 2 An
unmarried daughter on marriage ceases to be a part of her fathers joint family and joins her
husbands joint family as his wife. If a daughter becomes a widow or is deserted by her
husband and returns to her fathers house permanently, she again becomes member of her
fathers joint family. Her children however dont become members of her fathers joint family
and continues being member of their fathers joint family. Even an illegitimate son of a male
descendant would be a member of his fathers joint family3. A child in womb till it is born is
not a member of the joint family for taxation purposes but is treated as in existence for certain
purposes under Hindu law4.

1 Dr.Poonam Pradhan Saxena, Family Law Lectures, 3rd Edition(2013), Lexis Nexis, 53.

2 Surjit Lal v. Commissioner of Income Tax, (1978) 101 ITR 776

3 Gur Narayan Das v. Gur Tahal Das, AIR 1952 SC 225; Vellaiyappa Chetty v. Natarajan, AIR 1931
PC 294

4 Srinivasan v. Commissioner of Income Tax, AIR 1962 Mad 146.

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To bring into existence a joint family for the first time the presence of the senior most male
member is an essential condition. However, once the joint family comes into existence it
continues despite the death of this male member.The members of a joint family are bound
together by the fundamental principle of sapinda-ship or family relationship, which is the
essential feature of this institution. The cord that knits the members of the family is not
property but the relationship with one another. A Hindu joint family is not a corporation 5. A
Hindu joint family has no legal entity distinct and separate from that of the members who
constitute it. It is not a juristic person either 6 Hindu joint family is a unit and in all affairs it is
represented by its Karta. 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 member7.

5 Dr. Paras Diwan, Modern Hindu Law(2014), Allahabad Law Agency,283.

6 Chotelal v. Jhandelal, 1972 All. 424

7 Ram Kumar v. Commissioner of Income Tax, 1953 All. 150

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COPARCENARY

The Hindu joint family must be distinguished from Hindu coparcenary. The latter is a much
narrower body than the joint family. The coparcenary includes only those persons who by
birth acquire an interest in the joint or coparcenary property. They are the sons, sons sons
and sons sons sons of the holder of the joint family property for the present.

The essence of a coparcenary under the Mitakshara Law is unity of ownership and unity of
possession. The ownership of the coparcenary property vests in the whole body of
coparceners. As long as the family is joint, no individual member can predicate of the joint
undivided property, that is, he has certain and definite share therein. The rights of each
coparcener consists in a common possession and common enjoyment of the whole
coparcenary8

To understand the conception of coparcenary it is necessary to note the distinction between


ancestral and separate property. The property inherited by a Hindu from his fathers father
and fathers fathers father is ancestral property. Property inherited by other relations is his
separate property. The essential feature of ancestral property is that if the person inheriting it
has sons, grandsons or great grandsons, they become joint owners with him. They become
entitled to it by reason of their birth. Father, son, sons son and sons sons son together
constitute coparcenary, because they have common ownership in the ancestral property. No
coparcenary can commence without a common male ancestor, though after his death it may
consist of collaterals, such as brothers, uncles and nephews, cousins, etc. A member of a joint
family may be removed more than four degrees from the common ancestors and yet he may
be a coparcener. If he can demand partition he is a member of coparcenary. Only those

8 M.P. Tandon, Family Law in India , 4th edition (1990), Allahabad Law Agency,36.

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members of joint family can demand partition who are within four degrees from the last
holder of the property.

Incidents of Hindu Joint Family:

(a) A common male ancestor is necessary to bring the Hindu joint family in existence but
is not necessary for its continuation. After the death of such common male ancestor
the rest of the family continues to be a joint Hindu family. It is said that upper links
are removed and lower links are added.
(b) A Hindu joint family is purely a creature of law. This means, it cannot be created by
the act of the members or an agreement between the parties. Therefore, a stranger
cannot be made a member of a Hindu joint family even by agreement. The only
exception is marriage and adoption.
(c) A Hindu joint family has no legal entity distinct or separate from its members. It is a
unit and is represented by the manager of the joint family who is called Karta. It
cannot be sued in its own name. It is neither a juristic person nor a corporation and
therefore cannot convey the property in its joint character.
(d) The status of a joint family member can be lost by conversion to another faith, by
marriage to a non-Hindu, on being given in adoption by the competent parents, and
for a daughter, on getting married.
(e) All members in a joint family do not have equal rights in the family property.
Coparceners have an interest in the coparcenary property while females and males
other than coparceners or disqualified coparceners have a right of maintenance and a
right of residence in the joint family house.
(f) The continuation of a joint family is not dependent upon the presence of a male
member in the family.
(g) Plurality of members is necessary for constitution of or continuation of joint family
but plurality of male members is not necessary for its continuation. The joint family
does not end even with the death of a male member as long as it is possible in the
nature of things to add a male member in the family.
(h) A Hindu joint family may continue in perpetuity until it ends. Even where a partition
is effected this joint family may break but does not end as in its place two or more
joint families come into existence9.

9 State Bank of India v. Chamandi Ram, 1969 S.C, 1330.

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INCIDENTS OF COPARCENERSHIP

In N. Jaya Lakshmi v. R. Gopala, 10 where two brothers jointly acquired property and later
on one of the brothers was not heard to be alive for seven years, the other brother would take
the property by survivorship.

(a) Four Generation Rule: The lineal male descendants of a person, up to fourth
generation, acquire on birth, an interest in the coparcenary property held by him.
(b) Creation of Law: Like a joint family, coparcenary is also a creation of law and
cannot be formed by an agreement between the parties.
(c) No stranger can be introduced in the coparcenary. Only a male child, born in the
family or validly adopted, can become a coparcener. In Mitakshra coparcenary, no
female except a daughter can be its member, though they are members of the joint
family. It means that no female except the daughter has any interest by birth in the
joint family property. She has no right of survivorship or partition, though if a
partition takes place, certain females are entitled to a share.
(d) Acquisition of interest by birth: A coparcener in a joint family is born with an
interest in the coparcenery property which means that the moment he is born in the
family he gets a right by birth in the ownership of the coparcenery property. Thus, if
the family comprises the father and his two sons, all three of them have an interest in
the coparcenery property.
(e) Unity of Possession and Community of Interest: one of the basic features of
coparcenery is unity of possession and community of interest 11. All the coparceners
jointly own the coparcenery property and till a partition takes place and their shares
are specifically demarcated no one can claim ownership over any specific item of the
coparcenery property. This means that all coparceners have a right of common
enjoyment or common use of the property.
(f) Unpredictable and fluctuating interest: The most remarkable feature feature of
interest by birth is that the interest which a coparcener acquires by birth is not a
10 1995 S.C. 995.

11 Katama Natchiar v. The Rajah of Shivagunga, 1863 MIA 539.

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specified or fixed interest. At no time before partition can it be predicted that he is


entitled to so much share in the joint family property. Nor can he say that such items
of property belong to him, even if the properties are in his possession or use. The
interest fluctuates with the death and births in the family.12
(g) Right of Maintenance: Every coparcener and every other member of the joint family
has a right of maintenance out of the joint family property. The right of maintenance
subsists through the life of the member so long as family remains joint. Female
members and other male members who do not get a share on partition, either because
they have no right, such as an unmarried daughter or because they are disqualified
from getting a share, such as an idiot or lunatic coparcener, are entitled to
maintenance even after partition. Unmarried daughters have a right to be married out
of the joint family funds. Other members marriage expenses are also to be defrayed
out of joint family funds.
(h) Coparceners right to restrain and challenge alienation: When the father, the
Karta, the coparcener and the sole surviving coparcener overstep their power, the
alienation can be challenged. It can be challenged the moment the person entitled to
challenge comes to know of it and till it is not barred by limitation. Whenever an
alienation is challenged, the burden of proof is on the alienee to show that it was for a
valid purpose. Even when sons challenge an alienation made by the father for
discharging his personal debts, it is for the alienee to show that the debt was taken by
the father, though if sons assert that the debt was tainted, the burden of proof that the
debt was tainted is on the sons. Sometimes a stranger can also challenge an alienation,
such as purchaser of a coparceners interest may challenge an improper alienation.
(i) Coparceners right of partition:After the Amendment Act of 2005 a daughter since
would be a coparcener shall have a right to ask for partition. As a general rule, both
under the Mitakshara and the Dayabhaga schools, every coparcener has a right to
partition and every coparcener is entitled to a share on partition. Apart from the
coparceners, no one else has a right to partition. No female except the daughter has a
right to partition, but, if partition takes place, there are certain females who are
entitled to a share. These females are fathers wife, mother and grandmother etc.
under the Hindu Right to Property Act, 1937, a Mitakshara coparceners widow took
the same interest which her husband had at the time of his death. She was given the
right to partition.

12 Tundra v. Tiwari, 1972 M.P.L.J 400.

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(j) Illegitimate son as a coparcener: Hindu law has never considered an illegitimate
child as a filius nullius. An illegitimate son, particularly dasiputra has always regarded
as a member of his putative fathers joint family and as such has a right to be
maintained out of the joint family funds during his entire life. However, he is not
considered as an coparcener. Among the sudras, his position is slightly better. During
the life time of his father, he is not a coparcener with his father, and therefore has no
right to ask for partition. But if partition takes place , the father is free to allot a share
to him, even a share equal to a legitimate son. He is entitled to take only half a share
of what he would have taken had he been a legitimate son.
(k) Coparcenary between a sane and insane person: There can be a coparcenary
between a sane and an 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. If partition takes place he has no
share in property, but this does not make him cease to be a coparcener. When he is
cured of insanity, both his rights revive. In any case his son is not excluded from
taking a share in the partition13.
(l) Coparcenary within coparcenary: It is possible that separate coparcenaries may
exist within a coparcenary.

13 Kumar Rasheswari Naudan v. R.B. Bhagwati Saran, 1960 S.C.J 648.

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TYPES OF PROPERTY

There are two kinds of property under Hindu Joint Family. Those are:

1. Joint Family Property or Ancestral Property.

2. Separate or Self Acquired Property.

Joint Family Property or Ancestral Property.

Joint-family property or Ancestral property signifies the property in which all the coparceners
have community of interest and unity of possession. Such property consists of:

(a) Ancestral property;

(b) Property jointly acquired by the members of the joint family;

(c) Separate property of a member thrown into the common stock

(d) Property acquired by all or any of the coparcener with the aid of joint family funds.

In Bhagwant P. Sulakhe v. Digamber Gopal Sulakhe 14, the Supreme Court observed that the
character of any joint family property does not change with the severence of the status of the
joint family and joint family property continues to retain its joint family character so long as
the joint family property is in existence and is not partitioned amongst 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 property.

(a) Ancestral Property

Ancestral property is a species of coparcenary or joint family property. By the term ancestral
property is meant that property which descends from father, fathers father and great
grandfather. In this property a persons descendants upto three generations, i.e., sons, sons
son, sons sons son acquire an interest by birth.

14 1986 AIR 79

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The following kind of properties will constitute ancestral property with its incidental
characteristics, namely:

(1) Such property will devolve by survivorship and not by succession.

(2) It is a property in which male issues of a coparcener acquire an interest by birth.

In this case a male Hindu inherits the property from his father, fathers father or fathers
fathers father. Thus only the property inherited by a Hindu from anyone of the three
immediate paternal ancestors mentioned above is termed as ancestral property and the only
persons who acquire an interest in it by birth are sons, sons son and sons sons son.

The Privy Council dealing with the source of ancestral property held that it is confined to
property inherited from the three immediate paternal ancestors and the property inherited
from a maternal grandfather is the absolute property of the inheritor in which his son does not
acquire any interest by birth.

Any property inherited by a person from his female relatives, cannot be termed as ancestral
property. Where a property is given in gift to the sister by her brother, after the death of the
sister, her son inherits the same; it would be his separate property not an ancestral property.

Where a question arises as to whether a property obtained by a male Hindu by way of a gift
or will from his father, grandfather or great grandfather would be ancestral or self acquired,
the Supreme Court held that it depends upon the intention of the father or grandfather as
expressed in the deed of gift on will or to be gathered from the terms of the document and
surrounding circumstances.

If the intention of the grandfather was that the father should take the property exclusively, the
property in the hands of the father would be his separate property. If the intention of the
grandfather was that the father should take the property for the benefit of the branch of the
family it would be an ancestral property in the hands of the father, for his sons would get
equal rights with him in the property.

In Hindus the ancestral business of joint family has been regarded as a distinct heritable asset.
Where a Hindu dies leaving a business it descends like other heritable property to his heirs. In
the hands of sons, sons son and great grandsons it will become a joint family business on the

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death of male ancestor and the firm which consists of male issues becomes a joint family
firm.

The manager of a joint family cannot start a new business so as to bind the share of the other
adult coparceners, unless the business is started or carried on with their express or implied
consent.

The income of joint family business constitutes joint family property. Similarly any property
acquired in exchange of a joint family property would also be held to be joint family
property.

In case ancestral property is absolutely lost to the family, and a member of the family, by his
own exclusive exertions recovers it without any aid from the joint funds, and with the consent
actual or implied, of the others, the recoverer has certain special claims on the property. The
recovery, if not made with the privity of the co-owners, must at least be bona fide, and not in
fraud or by anticipation of the intention of other co-owners.

In Dharam Singh and others v. Sadhu Singh15 and others, the question was whether the
property was ancestral or separate. In this case properties devolving on father of party due to
the death of issueless brothers and addition to it by the relinquishment of shares by sisters
was held not to be ancestral property vis-a-vis his sons.

(b) Property jointly acquired by the members of the joint family:

Where property has been acquired by the members of joint Hindu family by their joint labour
whether in business, profession or vocation, with the aid of joint family property, it becomes
joint family or coparcenary property. According to Bombay High Court a property acquired
by the joint labour of the members, even without the aid of joint family funds, is presumed to
be joint family property in absence of any indication of an intention to the contrary.

Where two brothers acquired some property in a joint Hindu family by their joint efforts, in
absence of an intention to the contrary it would be presumed to be joint property and their
male descendants would acquire an interest in that property by birth.

15 (1938) 40 BOMLR

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In Bhagwant P. Sulakhe v. Digambar Gopal Sulakhe16, the Supreme Court held that the
character of any joint family property does not 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 property.

(C) Property Thrown Into the Common Stock:

Where any coparcener voluntarily throws his self-acquired property into the joint fund with
the intention of abandoning all separate claims to it, it would be joint property, so as to be
divisible among all the members. Such an intention need not be express, it is sufficient if the
owner blends it as one general account without discriminating between the two, in such a way
that a clear intention to waive his separate rights may be established.

In Subrammania Reddi v. Venkatasubba Reddi17, the husband of daughter had brought in


certain properties which got blended with joint family properties; she had become widow and
was issueless. The main consideration to make a sort of family arrangement and therefore
property had been given to her.

The other family members themselves have treated certain items of properties as separate
properties. The partition effected on that basis, but the family members blending properties of
widow as joint Hindu property. The Supreme Court observed that properties inherited by
widow from his relations on his maternal side, cannot blended with property of joint family
property.

All the members of joint Hindu family cannot create joint property by throwing their money
in common stock. The property belonging to the coparceners only can create joint family
property by blending them into common stock. Such a right is not available to female
members of the joint family as they are not coparceners.

16 1986 AIR 79

17 AIR 1999 SC 1116

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The doctrine is peculiar to Mitakshara school of Hindu law. When a coparcener throws his
separate property into the common stocks, he makes no gift under the Transfer of Property
Act and therefore it does not amount even to transfer.

(D) Property Acquired With The Aid of Joint Family Funds:

Property acquired with the aid and assistance of joint family property is also joint. Thus,
accumulation of income, i.e., rent etc. of joint family property, property purchased out of such
income, the proceeds of sale or mortgage of such property and property purchased out of such
proceeds are also joint family property.

Where in a joint Hindu family some property is purchased in the name of one of its members,
it will be regarded as a joint family property not his own separate property. If he has acquired
any property without the help of joint family property it could be treated as his separate
property. Where any member of joint family blends his self acquired property into common
property of the family or joint family property, it all becomes joint property.

In Smt. Parbatia Devi v. Mst. Sakuntala Devi18, the Patna High Court held that under Hindu
law, when a property stands in the name of a member of a joint family, it is incumbent upon
those asserting that it is joint family property to establish it.

Separate or Self Acquired Property.

Property which is not joint is called separate or self-acquired property. The word separate
suggests that the family was formerly joint but has now become separate. When a member
separates from joint family, the property which he acquires will be treated as his separate
property vis-a-vis his relations with his brothers, but so far his sons are concerned it would be
regarded as joint family property. The term self acquisition signifies that the property has
devolved upon him in such a manner as nobody except himself has any interest in it.

Property acquired by a Hindu in any of the following ways is his self-acquired or separate
property even though he be a member of a joint Hindu family:

(1) Property acquired by a Hindu by his own exertion would be his separate property as it is
not the result of any joint labour with the other members of the joint family, provided it is
18 AIR 1970 All 238

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obtained without detriment to joint family property. Where a person has acquired any
property by way of adverse possession after remaining in its possession adversely for a period
of twelve years it would be treated as his self-acquired property not a joint property.

Where a member of joint family carries on a business of medical practitioner in Ayurvedic


medicines and thereby earnes heavy sum of money and gives loan on mortgage, thus
accumulating further income, all the earnings and the property thus acquired by him would be
his separate property.

Recently in Maklian Singh v. Kulwant Singh 19, Supreme Court observed that if a male
member of the Joint Hindu Family purchased the property by his own incomes like salary
income, such property is his self acquired property. Such property inherit his heir by
succession. It could not be said to be the property of Joint Hindu Family.

(2) Property inherited by a Hindu from any person other than his father, grandfather or great
grandfather would be his separate property. Where a person earns money from the practice of
a hereditary profession like the hereditary priest, it will not be regarded as his joint family
property but on the other hand his separate property.

In Madan Lal Phul Chand Jain v. State of Maharashtra 20, the Court held that a Hindu can own
separate property besides having a share in ancestral property. Where any member of joint
family inherited land left by his uncle that property came to him as a separate property and he
had an absolute and unfettered right to dispose of that property in the manner he liked. Thus
property inherited by a person from colleterals such as brother, uncle etc. cannot be said to be
ancestral property and his son cannot claim a share therein as if it were ancestral property. On
the death of a brother issueless, the property inherited by a person would be his separate
property.

(3) Any property obtained by a Hindu as his share of partition of a joint Hindu family,
provided he has no male issue, shall be treated his separate property. Where a Hindu makes
some acquisitions after partition with the help of his share in joint family property, that
property shall be regarded as his separate property.

19 Appeal(civil) 4446 (2005)

20 1992 AIR 1254

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(4) Any property devolving on a sole surviving coparcener provided there is no widow in
existence who has power to adopt or has a child in her womb, will be regarded as his separate
property.

(5) Property obtained by a Hindu by a gift or will unless made by his father, fathers father or
fathers fathers father for the benefit of the family and not exclusively for himself, would be
his separate property.

(6) Property obtained by gift of ancestral property made by the father through affection, will
be his separate property.

(7) Property obtained by a Hindu by grant from the Government shall be regarded as separate
property.

(8) Joint family property lost to the joint family and subsequently recovered by a member
thereof without the assistance of joint funds from a stranger holding adversely to the family
property shall be regarded as his separate property.

(9) Gains of Learning:

Any income earned by a member of joint family substantially by means of his education or
specialisation, expertise or special intelligence would be regarded as his separate property.
Where a member of joint family acquires some knowledge or specialisation after getting the
education at the cost of joint family fund and later on earns a considerable sum, whether that
sum will be treated as his separate property or joint family property, became a controversial
issue.

In order to bring the controversy to an end the Hindu Gains of Learning Act, 1930 was
passed. The Act provided that no gams of learning shall be held not to be the exclusive and
separate property of the acquirer merely by reasons of learning having been 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
the funds of any member.

Position of Women after 2005 Amendment

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The Hindu Succession (Amendment) Act, 2005 was seeks to make two major amendments in
the Hindu Succession Act, 1956. First, it is proposed to remove the gender discrimination in
section 6 of the original Act. Second, it proposes to omit section 23 of the original Act, which
disentitles a female heir to ask for partition in respect of a dwelling house, wholly occupied
by a joint family, until the male heirs choose to divide their respective shares therein.
However in the instant project we have focused specifically on the changes brought in
Section 6 in regards to the position of woman and has made a clause-by-clause consideration
of the section thus amended.

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CONCLUSION

Change is a reality. Even the change works in the minds of human beings. The status of
women, from one angle of vision, is also due to the change in human mind, the development
of thought and reasoning. In the pre-social stage, we know that men and women lived on
fruits and raw meat of animals; no anxiety, no tension, no status. With the passage of time,
people learnt the use of fire and started leading a nomadic life and then a family life. There
was no inequality between men and women. With the inception of family life, society came
into existence. Spontaneous change and development of human mind, thought and reasoning
began to take place from the pre-social stage to social stage, and it had its continuity. The
status of women is mostly determined by the structure of the society or family. In the
patriarchal society, the descent of a family is traced through the father and in the matriarchal
family; it is traced through the mother.

The economic sphere is a very important one, and the social life of people depends on it. As
in ancient times, even at present agriculture forms the main source of national economy even
though industrial sector remains vital. Land is viewed increasingly as a form of social
insurance, something to fall back on in hard times. Land is a form of property, an immovable
property.

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BIBLIOGRAPHY

Books

1. Dr. Pradhan Saxena Poonam, Family Law Lectures, 3rd Edition(2013), Lexis Nexis.

2. Tandon M.P., Family Law in India , 4th edition (1990), Allahabad Law Agency.

3. Dr. Diwan Paras, Modern Hindu Law(2014), Allahabad Law Agency.

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