Joint Family Property.

Mitakshara Joint Families.

Joint Family Property.

Ancestral Property. a) Property inherited from father, fathers father or fathers fathers father. b) Property inherited from maternal grandfather, and c) Property inherited from any other relation.

Property inherited from maternal grandfather. Property inherited from any other relations. Property obtained on partition. Character of property after severance of status.

Property received in gift

Gift by father of self-acquired property. Gift by Father of a small portion of joint family property. Gift of joint family property by the Karta.

Property jointly acquired by coparceners. Property thrown into common stock and blended property. a) Mallesappa V.Mallappa AIR 1961 SC 1268.: Supreme Court held that the conduct on which the plea of blending is based must clearly and unequivocally show the intention of

the owner of the separate property to convert his property into an item of joint family property. A mere intention to benefit the members of the family by allowing them the use of the income from the separate property may not necessarily be enough to justify an inference of blending.

a) Lakkireddi V. Lakkireddi AIR 1963 SC 1601. : said that separate property or self acquired property of coparcener may be impressed with the character of joint family property, if it is voluntarily thrown by the owner into common stock with the intention of abandoning his separate claim therein.

Separate or Self-acquired property: A coparcener can make separate acquisition of property. Gains of learning. Salary and remuneration Income of the joint family property alloted to member for his maintenance. Benefit of insurance policy Government grants

Income from the separate property Separate earnings or earnings by self-exertion Property held by a sole surviving coparcener. Rights of coparceners.

Karta.
Who can be the Karta? Senior-most male member. More than one Karta. Female members as Karta. Position of the Karta. Kartas Liabilities.

Powers of Karta. Powers of management Right to income Right to representation. Power of Compromise. Power to refer a dispute to arbitration Power of acknowledgement.

Kartas power to contract debt. Loan on promissory note. Power to enter into contracts.

Alienation of Property.
Coparceners Power of Alienation. a) Involuntary alienation: undivided interest in the property in the execution proceedings. The limitation of this rule is such that such a decree cannot be executed against the interest of the coparcener after his death. But if interest has been attached during his life-time, it can be sold in court sale after his death.

b) Voluntary alienation: once it was accepted that the undivided interest of a coparcener can be attached and sold in execution of a money decree against him, it was the next logical step to extend the principle of voluntary alienation. i) Sale and mortgage ii) Gifts. iii) Renunciation.

Coparceners right to challenge alienation Existing Coparceners Right to Challenge. Coparcener who was in the womb at the time of alienation. After-born coparcener.

For eg. on 1.1.40, A a father, who has two sons, B and C made an alienation without any justifiable purpose or without the consent of B and C. On 1.6.42, S another son is born to A. B and C die on 1.8.42, S can challenge the alienation even after 1.8.42.But if before S was born, B and C consented to the alienation, S has no right to challenge it. In such a case, fresh period of limitation does not start from the date of his birth.

Mode of challenge. a) When alienation is void. b) When alienation is voidable.

Partition and Re-union

Properties which are not capable of Division Dwelling house The Partition Act. Staircase, wells etc.

Deductions and Provisions Debts Maintenance Marriage Performance of ceremonies.

Persons who have a right to Partition and a share on Partition.

Father Son, grandson and great-grandson Son born after partition Son conceived at the time of partition but born after partition Son begotten and born after partition:

Two situations. i) When the father has taken or reserved a share for himself, the after born son becomes a coparcener with his father. ii) when the father has not taken or reserved a share for himself, the afterborn son has a right to get the partition re-opened and get the estate redistributed as it then stands.

Adopted Son Illegitimate son: a) The dasiputra, or a son born to a concubine exclusively and permanently kept by a Hindu, and b) an illegitimate son born of a woman who is not a dasi. Their positions are as under:

Dayabhaga Law Minor Coparcener Alienee Absent coparcener.

Persons who have no right to partition but who are entitled to share if partition takes place.

Fathers wife Mother Grandmother Coparceners widow Daughters.

How Partition is Effected.

Severence of Joint Status or Interest. Expression of intention. Presumption of non-partition Communication of intention to sever. Partition under Sec.171 Income-tax Act,1981.

Mode of Partition.
Partition by suit Partition by agreement Oral Partition Unilateral declaration Partition by arbitration Partition by conduct

Automatic severance of status. Registration of Partition Parties to Partition

Partial Partition
Partial Partition a) Partial as to property b) Partial as to coparcener.

Reopening of Partition
Readjustment of assets. Re-opening of Partition a) Fraud b) Son in womb c) Adopted Son d) Disqualified coparceners e) Son conceived and born after partition.

f) Absentee coparcener g) Minor coparcener.

Reunion
How effected: Intention of parties to reunite in estate and interest. Can a minor reunite?: No he cant as no capacity to contract. Effect of Reunion: There has been a controversy whether the effect of reunion is to restore the parties to the original position or whether it merely establishes unity of possession, the severance of status continuing.

It is, now, an established view both under Mitakshara and Dayabhaga schools that after reunion status quo ante is full restored. A full bench of the Madras High Court held that reunited coparceners are not tenants-in-common, but are coparceners with right of survivorship, inter se, and that the sons shall be deemed to be coparceners with them.

Succession Under Hindu Law.

Introduction: The Hindu Succession Act, 1956 lays down uniform law of succession for all Hindus. Testamentary Succession Intestate Succession

Definitions
Intestate: A person who dies without making will. Heir: A person who is entitled to inherit property after the death of the intestate is known as heir. Descendants: offspring of a person. Immediate descendants of a person are his sons and daughters. Ascendants: Ancestors of a person. Immediate ascendants of a person are his father and mother.

Collaterals: are descendants in parallel lines, from a common ancestors or ancestress. For eg, brother is a collateral, so is sister. Agnates: When a person traces his relationship with another wholly through the males, he or she is an agnates. For eg, brother, brother son, sons son,etc.

Cognates: Whenever in the relationship of a person with another, a female (or more than one female) intervenes anywhere in the line, one is a cognate to another. For eg, sisters son and daughters, daughters sons and daughters, mothers mother and father, etc. Full blood: When the father and mother of two person are the same, they are related to each other by full blood. According to Sec.3(1)(e)(i) , Hindu Succession Act, two person are said to be related to each other by full blood when they are descended from common ancestors by the same wife.

Half-blood: When two persons have the same father but different mothers, they are related to each other by half blood. Uterine blood: When two persons have the same mother but different fathers, they are said to be related to each other by uterine blood.

Legitimate and illegitimate relationship: A person who is born within a lawful wedlock is legitimate and he or she is related to him or her parents by legitimate relationship. A person born outside the wedlock is illegitimate, and he or she is related to his or her parents by illegitimate relationship.

Heirs of a Hindu Male.

Class I Heirs 1. Son, Sons son, and Sons sons son. 2. Daughter, sons daughter, sons sons daughter. 3. Daughters son and daughters daughter.

4.Widow, sons widow, sons sons widow. 5.Mother.

Shares of Class I heir.

Sons, daughters and the mother of the propositus each takes one share. Widow take one share. Among the heir of the branches of predeceased son , son of predeceased son of a predeceased son, and predeceased daughter, the doctrine of representation applies.

Meaning thereby heirs in each branch would take the same share which their parent (son, grandson or daughter) would have taken had he/she been alive when succession opened. The heirs of each branch take per capita, but if there are more widows than one in the branch of the

predeceased son, or a predeceased grandson, all the widows together in each branch will take one share.

Rule 3: The heirs in the branch of each predeceased daughter of the intestate shall take between them share.

Rule 4. The distribution of the share referred to Rule 3among the heir in the branch of the predeceased son, shall be so made that his widow and the surviving sons and daughters get equal portions, and the branch of his predeceased son get the same portion.

Class II Heirs and their Shares.

Category I 1. Father. Category II Sons Daughters son Sons Daughters Daughter. Brother Sister.

1. 2. 3. 4.

1. 2. 3. 4.

Category III Daughters sons son Daughters sons daughter Daughters daughters son Daughters daughters daughter.

1. 2. 3. 4.

Category IV Brothers son, Brothers daughter Sisters son, Sisters daughter.

Category V 1. Fathers father, 2. Fathers mother. Category VI 1. Fathers widow 2. Brothers widow.

Category VII 1. Fathers brother 2. Fathers sister. Category VIII 1. Mothers Father 2. Mothers mother.

Category IX 1. Mothers brother 2. Mothers sister.

Succession to a Mitakshara Coparceners Interest.

Section 6 of the Act has been extensively amended by the Hindu Succession (Amendment) Act,2005.This section has been completely reworded and old section has been deleted. The old section still favoured the sons due to the concept of notional partition so to bring the daughters at par with sons,

by virtue of this section the daughters have been made coparceners along with the sons. She becomes a coparcener in her own right in the same manner as son, she would have same rights in the coparcenary property as she would have had if she had been a son and she would be obviously be subject to

same liabilities in respect of the said coparcenary property as that of a son. Further by virtue of this section the interest of a coparcener would go by inheritance-intestate or testamentary, and not by survivorship.

Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,- (a) the daughter is allotted the same share as is allotted to a son; (b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such predeceased daughter;

and (c) the share of the predeceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.

Explanation.- For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

What is the interest of the deceased coparcener when he dies?

It is a rule of the Mitakshara school that immediately on the death of the coparcener, his interest passes by survivorship to other coparceners, with the result that on his death he leaves behind nothing. It is also a rule of the Mitakshara that a coparceners interest in the joint family property can be specified and

served only by partition. Thus, to know what is the share of a deceased Mitakshara coparcener, Parliament was left with no option but to import the fiction of notional partition. That is what explanation 1 to Section 6: For the purpose of this section, the interest of irrespective of whether he was entitled to claim partition or not.

Notional or deemed partition.

The notional partition is not a real partition. It neither effects a severance of status nor does it demarcate the interest of the other coparceners or of those who are entitled to share on partition. It has to be used to demarcate the interest of the deceased coparcener, once that is done, rest should be forgotten.

Share in notional partition.

Shares are to be alloted ( though notionally) to all persons who would have been entitled to a share on a real partition. On the basis of this allotment, we get the share of the deceased coparcener demarcated. It is this share which will go by inheritance.

A Mitakshara joint family consists of A, his two sons B and C and a son BS and a daughter BD of B. Suppose B dies. Since he leaves behind BD, a female in Class I, his interest will devolve by succession. If partition had taken place during Bs life-time, he would have got 1/6 share; on the basis of per stripes rule, A will get

1/3, C will get 1/3 and Bs branch will get 1/3. In his branch it will go per capita. Since daughter does not take a share, on partition B and BS will take 1/12 of 1/3,i.e. 1/6 each. In notional partition, we start with the assumption that B is alive. After demarcating Bs share we forget about partition and note that B is dead and his 1/6 interest as demarcated by the notional partition will go by succession.

(A, C or BS do not get any share. They continue to remain joint in the remaining 5/6). The next step is to divide 1/6 among Bs heir in accordance with the Hindu Succession Act, 1956. A is his father who is in Class II, C is his brother who is also in Class II, and BS and BD are his son and daughter who are in Class I. Thus, 1/6 of B will go to BS and BD who will take one share each i.e. each will take 1/12.

B dies leaving behind a son BS, a predeceased daughters son, BDS, a father A and a brother C. He is a member of the coparcenary headed by his father. BDS is not a member of As joint family. Since B dies leaving behind BDS, a male claiming through a female, his interest will devolve by succession. In notional partition he will get 1/6 share. This 1/6 will go to BS and BDS, each taking 1/12.

In Rajrani V. Chief Settlement Commr. AIR 1984 SC 1234 P a Mitakshara coparcener, died leaving behind his widow W, three sons, A, B, C and three daughters X,Y and Z. In notional partition P would get onefifth share. This will go in equal shares to W,A,B,C,X,Y and Z, each taking one-thirtyfifth. Ws share will

be one-fifth plus one-thirtyfifth i.e 8/35.

Succession to the property of a Hindu Female.

Although Hindu Womans limited estate has been abolished and, so long as the woman is alive, she has absolute power over all types of property ( she is also free to dispose it of by will), yet for the purpose of intestate succession, the source of property is still material.

For the purpose of succession, the property of a Hindu female falls under the following three heads: 1. Property inherited by a female from her father or mother. 2. Property inherited by a female from her husband or father-in-law, and 3. Property obtained by her from any other source, by inheritance or otherwise.

Heirs to property under III.

1. 2. 3.
1. Entry (a): Sons and daughters Grandchildren Husband Shares of heirs in entry (a) Son, daughter and husband each take one share.

2. Among the heirs of the branches of predeceased son and predeceased daughter, the doctrine of representation applies, i.e. the children of the predeceased daughter and children of predeceased son take the same share which the daughter or son would have taken had she or he been alive.

3. Among heirs of a branch they take per capita. Entry (b) On the failure of heirs in entry (a), the property will devolve on the heirs of entry. Entry (b) runs as under: Upon the heir of the husband.

Entry (c) In this entry there are only two heirs: father and mother of proposita. Mother does not include step mother. Father does not include a putative father or stepfather. Natural or adoptive father is included.

Entry (d) Upon the failure of heirs in Entry (c), the property of the intestate female devolves upon the heirs of father. Entry (e) Upon the failure if heirs in Entry (d) the property will devolve upon the heirs of the mother.

Sons Pious Obligation to Pay Fathers Debt.

This concept has been done away with by virtue of Amendment Act of 2005. According to Sec.6(4) of the Act no court shall recognize any right to proceed against a son, grandson, or great grandson for the recovery of any debt due from father, grandfather, great grandfather solely on the ground of pious obligation

under the Hindu Law though if any debt was contracted before this Act came into force, i.e before 9th Sep. 2005 a creditors right would not be affected to proceed against the son, grandson or great grandson or any alienation would also not affected which was made in satisfaction thereof.

Nature of the Liability.

Debts occupy a very importance place in the Hindu System of law. This is one of the areas of Hindu Law which illustrate one of the fundamental principles of the Hindu Jurisprudence, viz moral obligations take precedence over legal rights. The Hindu sages have repeatedly

enjoined that one must pay ones debts. Brihaspati ordained: one who does not repay his debts will be born hereafter in the creditors house as a slave, a servant, a woman or quadruped.

According to Narada: if a very religious and devoted person died indebted, the whole of the merit of his sacrifices and devotions will belong to the creditor. But the Hindu Sages said that if a Hindu dies indebted, his sons will repay his debts.

Debt must not be avyavaharika.

Since the liability of the son is pious, the character of the fathers debt is material. The sons are liable for the fathers pre-partition debts and not the post-partition debts, provided the debts are not avyavaharika, i.e taken for immoral or illegal purpose, or to use the apt expression of Derett, private, untained, prepartition debts.

Debts that need not be paid by the Son.

debts due to spiritous liqour debts due for lust debts due to gambling unpaid fines unpaid tolls debts due for anything idle promised or promised without consideration or anything promised

under influence of wrath. suretyship Commercial debts. debts that are not avyavaharika.

Antecedent Debt.
Antecedent debt as antecedent in fact as well as in time i.e not a part of the transaction impeached. Two conditions are necessary: a) the debt must be prior in time and b) the debt must be prior in fact.

In one of the case Gujarat High Court said that if father sells properties to discharge a mortgage debt which is not avayavahrika, though not justified for legal necessity or benefit, the son can get the sale set aside provided he meets the liabilities arising there under.

Disqualification of Succession.
Disease, deformity and unchastity. Remarriage. Conversion Murderer.

Succession under Marumakkattayam and Aliyasantana Laws.

The Marumakkattayam and Aliyansantana laws are a body of custom and usage. The outstanding feature of the Marumakkatayam and Aliyasantana law is that the inheritance is through nephews and nieces, in other words, it is based on martriarchate.

Like the joint family and coparcenery of the Mitakshara school, the Marumakkattayam and Aliyastana systems have their unit, tarwad. Mitakshara joint family is based on patriarchal system while the tarwad of Marumakkattayam is based on matriarchal system.

Tarwad is the name given to the joint family consisting of males and females, all descended in the female line from the common ancestress. A tarwad may consist of two or more branches known as tavazhies, each tawazhi or branch consisting of one of the female members of the tarwad and her descendants in the female

line. The senior most male member in the Marumakkattayam tarwad is known as the karnavaran and the senior most female member is called the karnavathi.

The law of succession of Marumakkatayam and Aliyasantana had been changed by legislative enactments. The general rules of succession to the property of a male belonging to Marumakkatayam and Aliyasantana system are as follows:

Male dying intestate, his property shall devolve:

Firstly, upon heirs, being relatives specified in class I of the schedule, and Secondly, if there is no heir of class I , upon heirs in Class II of the schedule Thirdly, if there is no heir of any of two classes, upon his relatives whether agnates or cognates.

Female dying intestate shall devolve on the following:

Firstly upon the sons and daughters and the mother Secondly upon the father and the husband Thirdly upon the heirs of the mother, Fourthly upon the heirs of the father and Lastly, upon the heirs of the husband