PROJECT REPORT

ON

JOINT HINDU FAMILY

Submitted in Partial Fulfillment of the Requirements

for the Degree of

Bachelor of Business Administration

(BBA 1ST Year)

Submitted By

YASH UPADHYAY
Roll No. 134

Submitted to

MR. D.K. SINGH

(Head of the Department)

DEPARTMENT OF BUSINESS ADMINISTRATION

ALIGARH COLLEGE OF ENGINEERING AND TECHNOLOGY

Affiliated to Raja Mahendra Pratap Singh State University, Aligarh

Joint Hindu Family

1
 Joint Hindu Family

A Hindu joint family consists of the common ancestor and all his lineal male descendants upon

any generation together with the wife or wives (or widows) and unmarried daughters of the

common ancestor and of the lineal male descendants. The existence of the common ancestor is

necessary for bringing a joint family into existence, for its continuance common ancestor is not

a necessity.

According to Sir Dinshah Mulla, “A joint Hindu family consists of all persons lineally

descended from a common ancestor, and includes their wives and unmarried daughters. A

daughter ceases to be a member of her father's family on marriage, and becomes a member of

her husband's family.

A joint and undivided family is the normal condition of Hindu society. An undivided Hindu

family is ordinarily joint not only in estate, but also in food and worship. The existence of joint

estate is not an essential requisite to constitute a joint family and a family, which does not own

any property, may nevertheless be joint. Where there is joint estate, and the members of the

family become separate in estate, the family ceases to be joint. Mere severance in food and

worship does not operate as a separation.

The property of a joint family does not cease to be joint family property belonging to any such

family merely because the family is represented by a single male member who possesses rights

which an absolute owner of a property may possess. It may even consist of two females

members. There must be at least two members to constitute Joint Hindu family. A single male

or female cannot make a Hindu joint family even if the assets are purely ancestral.

2
In Narenderanath v. Commissioner of Wealth Tax, the Supreme Court held that the expression

'Hindu undivided family' in the wealth Tax Act used in the sense in which a Hindu joint family

is understood in the personal law of Hindus and a joint family may consist of a single male

member and his wife and daughters and there is nothing in the scheme of the Wealth Tax Act

to suggest that a Hindu undivided family as assessable unit must consist of a least two male

members.

In Commissioner of Income Tax v. Gomedalli Lakshminarayan there was a joint family

consisting of a father and his wife and a son and his wife, the son being the present assessee.

On the death of father the Question raised is whether the assessee is to be assessed as an

individual or as a member of the joint Hindu family, It was held that the son's right over the

property is not absolute because two females in the family has right of maintenance in the

property, therefore the income of the assessee should be taxed as the income of a Hindu

undivided family.

In Anant v. Shankar it was held that on the death of a sole surviving coparcener, a Hindu Joint

Family is not finally terminated so long as it is possible in nature or law to add a male member

to it. Thus there can also be a joint family where there are widows only.

3
 Conclusion

In the present scenario, when amendments are made to the effect that women have been entitled

to inherit property from her parental side as well as from husband's side, it will be quite justified

if equal right is given to her parental heirs along with her husband's heirs to inherit her property.

It is, therefore, proposed that in order to bring about a balance, section 15 should be amended,

so that in case a female Hindu dies intestate leaving her self-acquired property with no heirs,

as mentioned in clause 'a' of section 15, the property should devolve on her husband's heirs and

also on the heirs of her paternal side.

So by this paper we have understood the concept of joint family property under Mitakshara and

Dayabhaga School. Coparcenary idea under Hindu Law was mainly by the male member of

the family where just children, grandson and great-grandsons son who have a right by birth ,

who has as interest in the coparcenary property.

No female of a Mitakshara coparcenary could be a coparcener but she will always be a part of

the joint family.

30
 References

http://en.wikipedia.org/wiki/Hindu_Marriage_Act

http://snapbengal.org/Wakfobj.htm

http://www.lawyersclubindia.com/share_files/LL-B-Family-Law-Notes-

5348.asp#.UsmFJ9IW0ZM

http://hanumant.com/index.php/academics/law-notes/12-family-law-ii-muslim-law.html

http://law256.wordpress.com/2012/02/10/family-law-notes/

http://family-law-india.blogspot.in/

http://www.legalindia.in/category/family-law-act-rules

Text books:

Modern Hindu Law – Paras Diwan

31
 Mitakshara and Dayabhaga

MITAKSHARA SCHOOL:

The Mitakshara School exists throughout India except in the State of Bengal and Assam. The

Yagna Valkya Smriti was commented on by Vigneshwara under the title Mitakshara. The

followers of Mitakshara are grouped together under the Mitakshara School. Mitakshara school

is based on the code of yagnavalkya commented by vigneshwara, a great thinker and a law

maker from Gulbarga, Karnataka. The Inheritance is based on the principle or propinquity i.e.

the nearest in blood relationship will get the property. The school is followed throughout India

except Bengal state. Sapinda relationship is of blood. The right to Hindu joint family property

is by birth. So, a son immediately after birth gets a right to the property. The system of

devolution of property is by survivorship. The share of co-parcener in the joint family property

is not definite or ascertainable, as their shares are fluctuating with births and deaths of the co-

parceners. The co-parcener has no absolute right to transfer his share in the joint family

property, as his share is not definite or ascertainable.

Women could never become a co-parcener. But, the amendment to Hindu Sucession Act of

2005 empowered the women to become a co-parcener like a male in ancestral property. A

major change enacted due to western influence. The widow of a deceased co-parcener cannot

enforce partition of her husband’s share against his brothers.

There are four Sub-Schools under the Mitakshara School:

i. DRAVIDIAN SCHOOL OF THOUGHT : (MADRAS SCHOOL) It exists in

South India. In the case of adoption by a widow it has a peculiar custom that the

consent of the sapindas was necessary for a valid adoption.

4
Collector of Madura vs. Mootoo Ramalinga Sethupathy (Ramnad case): The zaminder of

Ramnad died without sons and in such a condition, the zamindari would have escheated to the

Government, the widow Rani Parvatha vardhani made an adoption of a son, with the consent

of the sapindas of her husband.

But on the death of the widow, the Collector of Madhura notified that the Zamindari would

escheat to the State. The adopted son brought a suit for declaration of the validity of the

adoption.

It was a question whether a widow can make a valid adoption without her husband’s consent

but his sapinda’s consent.

The Privy Council, after tracing the evolution of the various Schools of Hindu law, held that

Hindu law should be administered from clear proof of usage which will outweigh the written

text of law. Based on the Smriti Chandrika and Prasara Madhviya, the Privy Council concluded

that in the Dravida School, in the absense of authority from the husband, a widow may adopt

a son with the assent of his kindred.

ii. MAHARASHTRA SCHOOL: (BOMBAY SCHOOL OF THOUGHT) It exists

in Bombay (Mumbai), from the above four bases, there are two more bases. They

are Vyavakara, Mayukha and Nimaya Sindhu. The Bombay school has got an entire

work of religious and Civil laws.

iii. BANARAS SCHOOL OF THOUGHT: It exists in Orissa and Bihar. This is a

modified Mitakshara School.

5
 iv. MITHILA SCHOOL OF THOUGHT: It exists in Uttar Pradesh near the Jamuna

river areas. Apart from the above schools, there are four more schools which are

now existent today. They are Vyavakara, Mayukha Nimaya and Sindhu Schools.

DAYABHAGA SCHOOL OF THOUGHT

It exists in Bengal and Assam only. The Yagna Valkya smriti is commented on by

Jimootavagana under the title Dayabhaga. It has no sub-school. It differs from Mistakshara

School in many respects. Dayabhaga School is based on the code of yagnavalkya commented

by Jimutuvahana, Inheritance is based on the principle of spiritual benefit. It arises by pinda

offering i.e. rice ball offering to deceased ancestors. This school is followed in Bengal state

only. Sapinda relation is by panda offerings. The right to Hindu joint family property is not by

birth but only on the death of the father. The system of devolution of property is by inheritance.

The legal heirs (sons) have definite shares after the death of the father. Each brother has

ownership over a definite fraction of the joint family property and so can transfer his share.

The widow has a right to succeed to husband’s share and enforce partition if there are no male

descendants. On the death of the husband the widow becomes a co-parcener with other brothers

of the husband. She can enforce partition of her share.

Coparcenary

A Hindu coparcenary is a much narrower body that the joint family. It includes only those

persons who acquire by birth an interest in the joint or coparcenary property. These are the

sons, grandsons and great-grandsons of the holder of the joint property for the time being, in

other words, the three generations next to the holder in unbroken male descent.

6
Ancestral property is a species of coparcenary property. As stated above if a Hindu inherits

property from his father, it becomes ancestral in his hands as regards his son. In such a case, it

is said that the son becomes a coparcener with the father as regards the property so inherited,

and the coparcenary consists of the father and the son. However, this does not mean that

coparcenary can consist only of the father and his sons. It is not only the sons but also the

grandsons and great grandsons who acquire an interest by birth in the coparcenary property.

Coparcenary begins with a common male ancestor with his lineal descendants in the male line

within four degrees counting from and inclusive of such ancestor. The Mitakshara concept of

coparcenary is based on the notion of son's birth right in the joint family property.

Though every coparcenary must have a common ancestor to start with, it is not to be supposed

that every extant coparcenary is limited to four degrees from the common ancestor. When a

member of a joint family is removed more than four degrees from the last holder, he cannot

demand a partition, and therefore he is not a coparcenar. On the death, however, of the last

holder, he would become a member of the coparcenary, if he was fifth in descent from him and

would be entitled to a share on partition, unless his father, grandfather and great-grandfather

had all predeceased the last holder. Whenever a break of more than three degrees occurs

between any holder of property and the person who claims to enter the coparcenary after his

death the line ceases in that direction and the survivorship is confined to those collaterals and

descendants who are within the limit of four degrees.

In Ceylon- Attorney-General of Ceylon v. A. R. Arunachalam Chettiar case a father and his

son constituted a joint family governed by Mitakshara School of Hindu Law. The father and

the son were domiciled in India and had trading and other interests in India. The undivided son

died and father became the sole surviving coparcener in a Hindu Undivided family to which a

7
number of female members belonged. In this the court said that the widows in the family

including the widow of the predeceased son had the power to introduce coparceners in the

family by adoption and that power was exercised after the death of son.

In Gowli Buddanna v. Commissioner of Income-Tax, Mysore a family consisting of father, his

wife, his two unmarried daughters and his adopted son. After the death of father question arises

whether the sole male surviving coparcener of the Hindu joint family, his widowed mother and

sisters constitute a Hindu undivided family within the meaning of the Income tax Act? In this

case it was held by the court property of a joint family does not cease to belong to the family

merely because the family is represented by a single coparcener who possesses rights which an

owner of property may possess. The property which yielded the income originally belonged to

a Hindu undivided family.

In Moro Vishvanath v. Ganesh Vithal plaintiffs and defendants are descendants of one Udhav.

The defendants are all fourth in descent from him. The plaintiffs, however are, some fifth, and

others sixth in descent from him. The question, however, whether, assuming them to be

undivided, the plaintiffs are entitled to sue at all for a partition according to Hindu Law, is one

of considerable importance and difficulty. It was urged that Plaintiffs cannot claim from the

defendants any partition of property descended from that common ancestor. It was held that

upon a consideration of a the authorities cited, it seems to me that it would be difficult to uphold

the appellants' contention that a partition could not, in any case be demanded by descendants

of a common ancestor, more than four degrees removed, of property originally descended from

him.

The essence of a coparcenary under Mitakshara law is unity of ownership. The ownership of

8
the coparcenary property is in the whole body of coparceners. According to the true notion of

an undivided family governed by Mitakshara law, no individual member of that family, whilst

it remains undivided, can predicate, of the joint and undivided property, that he, that particular

member, has a definite share. His interest is a fluctuating interest, capable of being enlarged by

deaths in the family, and liable to be diminished by births in family. It is only on partition that

he becomes entitled to a definite share. The most appropriate term to describe the interest of a

coparcener in coparcenary property is 'undivided coparcenary interest'. If a Mitakshara

coparcener dies immediately on his death his interest devolves on the surviving coparceners.

The Supreme Court has summarized the position and observed that the coparcenary property

is held in collective ownership by all the coparceners in a quasi-corporate capacity. The

incidents of coparcenary are:

1. The lineal male descendants of a person upto the third generation, acquire on birth

ownership in the ancestral properties of such person;

2. such descendants can at any time work out their rights by asking for partition;

3. till partition each member has got ownership extending over the entire property

conjointly enjoyment of the properties is common; 4

4. as a result of such co-ownership the possession and enjoyment of the properties is

common;

5. no alienation of the property is possible unless it is for necessity, without the

concurrence of the coparceners and

6. the interest of a deceased member passes on his death to the surviving coparceners.

Every coparcener and every other member of the joint family has a right of maintenance out of

9
the joint family property. The right of maintenance subsists through the life of the member so

long as family remains joint. No female can be a coparcener under Mitakshara law. Even wife,

though she is entitled to maintenance.

Difference between Joint Hindu Family and Coparcener

1. 1 In order to constitute a Joint Hindu family the existence of any kind of property is not

required whereas in Coparcenary there exists a ancestral property.

2. Joint Hindu families consist of male and female members of a family whereas in

Coparcenary no female can be a coparcener.

3. Coparcenars are members of the Joint Hindu Family whereas all the members of Joint

Hindu family are not Coparcenars.

Dayabhaga School on Coparcenar and Joint Hindu Family:

According to the Dayabhaga law, the sons do not acquire any interest by birth in ancestral

property. Their rights arise for the first time on the father's death. On the death they take such

of the property as if left by him, whether separate or ancestral, as heirs and not by survivorship.

Since the sons do not take any interest in ancestral property in their father's lifetime, there can

be no coparcenary in the strict sense of the word between a father and sons according to the

Dayabhaga law. The father can dispose of ancestral property, whether movable or immovable

by sale, gift, will or otherwise in the same way as he can dispose of his separate property. Since

sons do not acquire any interest by birth in ancestral property, they cannot demand a partition

of such property from the father. A coparcenary under the Dayabhaga law could thus consist

of males as well as females. Every coparcenar takes a defined share in the property, and he is

owner of that share. It does not fluctuate with birth and deaths in family.

10
Formation and Incident under the coparcenary property under Dayabhaga and

Mitakshara

Co parcenary - The system of copartionary

Formation of Mitakshara coparcenary - A single person cannot form a coparcenary. There

should be at least two male members to constitute it. Like a Hindu joint family, the presence

of a senior most male member is a must to start a coparcenary. A minimum of two members

are required to start and to continue a coparcenary. Moreover, the relation of father and son is

essential for starting a coparcenary. For example, a Hindu male obtains a share at a time of

partition from his father and then gets married. Till the son is born, he is the sole male in this

family, but he alone will not form a coparcenary. On the birth of his son, a coparcenary

comprising of him and his son, will come into existence. When this son gets married, and a son

is born to him, the coparcenary will comprise the father F, his son S, and his grandson SS.

When a coparcenary is started, the senior most male member, with his son, that is, lineal male

descendant, till four generations (inclusive of him) of male line will form a coparcenary. If

there is a lineal male descendant in the fifth generation, he will be the member of the joint

family, but will not be a coparcener as he is removed from the senior most male member by

more than four generations.

When all the coparceners die, leaving behind only one of them, the surviving coparcener is

called the sole surviving coparcener. As a minimum of two male members are required to form

a coparcenary, a sole surviving coparcener cannot form a coparcenary all by him.

Why is coparcenary limited? The coparcenary is limited to three generations of lineal male

decadence of the last holder of the property owner. According to the tenets of Hinduism, only

11
descendants up to three generations can offer spiritual ministrations to the common ancestor.

Besides, only males can be coparceners because the females invariably leave the father's house

and assume domestic duties as they enter in the husband's home.

Unmarried women, until 1956 only had the right of maintenance from the joint property, which

included only the marriage expenses. The 1937 legislation allowed a widow to move into the

shoes of her deceased husband and inherit his share. However, she does NOT become a

coparcenary to this joint property.

Doctrine of revertioners: Hindu Succession Act, 1956: - for the first time, the widow got full

rights in her husband's property S. 14 of the Act 2005 Act -daughters, by birth, got coparcenary

rights.

Women as coparcenary: Under Mitakshara coparcenary, women cannot be coparceners. A

wife, under Hindu law, has a right of maintenance out of her husband's property. Yet she is not

a coparcener with him. Even a widow succeeding to her deceased husband's share in the joint

family, under the Hindu Women’s (right to property) Act, 1937, is not a coparcenary.

Unity of possession and community of interest - One of the basic features of coparcenary is

unity of possession, and community of interest. All the coparceners jointly own the coparcenary

property and till a partition takes place, and their shares are specifically demarcated, no one

can claim ownership over any specific item of the coparcenary property. The proceeds of

undivided family are enjoyed by its members as till a partition takes place, they hold everything

jointly. Coparcenary property suggests ownership by one group collectively, and enjoyment

and possession of it by not only this group exclusively, but by the joint family members who

are outside this group.

12
Doctrine of survivorship - The shares of the coparceners are not specific and are subject to

change with the births and deaths of the coparceners, in the family. Under the traditional or the

classical law, on the death of the coparcener in a joint family, his interest in the family property

is immediately taken by those coparceners who survive him, and thus, he leaves nothing behind

out of his interest in the coparcenary property for his female dependants. This phenomenon is

called the doctrine of survivorship. On birth, he takes an interest, enjoys it during his life time,

but leaves nothing for his female dependants on his death. In Dayabhaga system, one is entitled

to succeed the property after the death of the male holder. Till then, he is just an heir.

Notional Partition – The 1956 Act brought some changes in the coparcener system. Notional

partition was taken into consideration to compute and demarcate the shares. i.e. Father and 2

sons 1/3rd each, though not specified as to what the specific exact division is.

Commencement of coparcenary – One of the primary differences between Mitakshara and

Dayabhaga Law is the commencement or the starting of coparcenary itself. Under the

Mitakshara law, the starting point of the coparcenary is the birth of the son in the family of a

person, who after inheriting the property from his father, or paternal grandfather, or paternal

great-grandfather or obtaining property on partition hold it as a sole surviving coparcener. For

example, in a coparcenary consisting of a father F, and his two sons A and B, A demands a

partition, takes his share and then gets married, when a son is born to him, he will form a

coparcenary with his son. Thus, the birth of a son is the starting point or reviving point of

Mitakshara coparcenary.

In complete contrast to it, under the Dayabhaga Law, the father so long as he is alive, holds

the property as a sole or exclusive owner of it. On his death, if he is survived by two or more

13
sons, they inherit the property, and form a coparcenary. It is the death of the father that becomes

the starting point of the formation of coparcenary, under the Dayabhaga Law.

Notional Partition – It was generally felt that radical reform was required in Mitakshara Law

of coparcenary and that where one of the coparceners died, it was necessary that in respect of

his undivided interest in the coparcenary property, there should be equal distribution of that

share between his male and female heirs, and particularly between his son and daughter. The

Hindu Women’s (Right to Property) Act, 1937 conferred new rights on the widows of

coparceners. The initial part of section 6 of the 1956 Act does not interfere with the special

rights of those who are members of Mitakshara coparcenary, except to the extent that it seems

to ensure the female heirs and daughter’s son, specified in Class I of the schedule, a share in

the interest of a coparcener in the event of his death by introducing the concept of a notional

partition immediately before his death, and carving out his share in the coparcenary property,

as of that date. The section proceeds first by making provision for the retention of the right of

survivorship and then engrafts on that rule the important qualification enacted by the provision.

The proviso operates only where the deceased has left surviving him a daughter’s son, or any

female heir specified in Class I of the schedule.

Illustrations – A and his son B are members of a Mitakshara coparcenary. A dies intestate.

Surviving him is his only son B. His undivided interest in the coparcenary property will devolve

upon B by survivorship as clearly envisaged in the initial part of the section and not by

succession.

A and his sons B and C are members of a Mitakshara coparcenary. A dies intestate in 1958.

Surviving him is his widow A1 and his two sons. B and C continue to be members of the joint

14
family. A’s undivided interest in the coparcenery property will not devolve by survivorship

upon B and C, but will devolve by succession upon A1, B, and C.

The amending act of 2005 is an attempt to remove the discrimination as contained in the

amended section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in

the Hindu mitakshara coparcenery property as the sons have. Simultaneously, section 23 of the

Act, as disentitles the female heir to ask for partition in respect of dwelling house wholly

occupied by a joint family, until a male heir chooses to divide their respective shares therein,

has been amended by the amending Act of 2005. As a result, the disabilities of female heirs

were removed. This great step and is the product of 174th report of the Law Commission of

India.

If P dies, leaving behind a mother M, and two sons A and B, and three daughters, E, F, G, how

would the property devolve? - 1/6th each. If P dies, leaving behind a mother M, and a son S,

and two daughters B and D, how would the property devolve – 1/4th each? P dies, leaving

behind a widow W, and his mother M, and his two sons, A and B. – 1/4th each. P dies, leaving

behind his mother M, and his two widows A and B, and a son S.- 1/3rd, 1/6th, 1/6th, and 1/3rd

resp. P dies, leaving behind a son A and a daughter B of a pre-deceased SS, and two sons C, E

and a daughter F of a predeceased daughter D. Triple succession. P dies, leaving behind his

two widows A and B, his mother M, two widows C and D and a son S of a pre-deceased son

and two daughters E and F and a son G of a predeceased daughter.

Under the old Hindu law, conversion by a Hindu to another religion was a disqualification,

which was removed by the Caste Disabilities Removal Act, 1850. Under the Act, conversion

does not disqualify an heir from inheriting the property of the intestate, but descendants of a

15
convert are disqualified from inheriting the intestate.

Thus, the children of the convert and descendants of the children are disqualified, but if at the

time of death of the intestate, any one of them is a Hindu, he is not disqualified. Succession to

the property of a convert is regulated by the personal law applicable to the convert after his

conversion. The provision of S. 26 may be explained by some illustrations:

An intestate dies leaving behind two sons A and B, and a grandson SS, from a pre-deceased

son, who had converted to Islam before SS was born to him. SS is disqualified, and the entire

property is inherited by A and B.

Cognates – A person is said to be a cognate of another if the two are related by blood or

adoption, but not wholly through males. They may be related through one or more females.

Thus, a mother’s brother’s son and brother’s daughter’s daughter are cognates. The three

categories of cognates are:

Cognates who are descendants – Such, for instance are son’s daughter’s son’s son, and

daughter’s son’s son’s son.

Cognates who are ascendants – Such for instance, are father’s mother’s father, and mother’s

father’s father.

Cognates who are collaterals – They are related to the intestate by degrees, both of ascent and

descent. Such, for instance, are Father’s sister’s son and Mother’s brother’s son.

16
Rules of preference – The order of succession among agnates or cognates is governed by three

rules of preference, laid down in S. 12, which are common to both the categories of heirs. In

order to determine which of the two or more claimants in the category of agnates or of cognates,

recourse must be taken to rule 1 and 2, laid down in S. 12, and initially to rule 1. When one

competing heir is not entitled to be preferred to the other under rule 1 or 2, they take

simultaneously, under Rule 3.

Rule 1 – This rule is pivotal and enacts that, of two heirs, the one who has fewer or no degrees

of ascent is preferred. Illustration – If the two competing heirs are two collateral agnates, that

is, brother’s son’s daughter, (father’s son’s son’s daughter), and b) paternal uncle’s son

(father’s father’s son’s son). The former, who has only 2 degrees of ascent, is to be preferred

to the latter that has three degrees of ascent.

Rule 2 – This rule enacts that where the number of degrees of ascent is the same, the one who

has fewer or no degrees of descent is preferred. Illustration – The competing heirs are two

collateral agnates, a) brother’s son’s daughter (father’s son’s son’s daughter), and b) brother’s

son’s son’s daughter (father’s son’s son’s son’s daughter). Again, the former is to be preferred,

because, in spite of having two degrees of ascent, each, the former has only three degrees of

descent compared to the latter’s .

Rule 3 – This rule enacts that where neither heir is entitled to be preferred, under rule 1 or two,

they take simultaneously. Illustration – The competing heirs are two agnates, a) son’s son’s

son’s son, and b) son’s son’s son’s daughter. There are no degrees of ascent, and the number

of degrees of descent is the same in case of both, and both stand in the same degree of descent.

Therefore, neither heir is entitled to be preferred. Illustration 2 – The competing heirs are two

17
cognates, a) daughter’s son’s son, and b) son’s daughter’s son. The position is similar, to that

of illustration 1 and they take simultaneously.

Property of a female Hindu to be her absolute property (S. 14 of HSA, 1956) prior to the coming

into force of this Act, a woman’s ownership of property was hedged in by certain delimitations

on her right of disposal and also on her testamentary power in respect of that property. The

restrictions imposed by Hindu Law on the proprietary rights of a woman depended on her status

as a maiden, as a married woman, and as a widow. The rule laid down in Subsection 1 has very

wide and extensive application, and the act overrides the old law on the subject of Stridhana in

respect of all property possessed by a female, whether acquired by her before or after the

commencement of the Act, and this section declares that all such property shall be held by her

as full owner. The Act confers full heritable capacity on the female heir, and this section

dispenses with the traditional limitations on the powers of a female Hindu to hold and transmit

property.

The sharers receive their respective shares according to the following rules:

Father – When there is a child or child of a son, how low so ever, the father takes 1/6th. But,

where there is a child, or child of a son, how low so ever, the father inherits as a residue.

True Grandfather (from the father’s side, i.e. father’s father) – Grandfather can never take any

share where there is father , but where there is no father , but there is a child, or child of a son,

how low so ever, the true grandfather takes 1/6th.

Husband – takes 1/4th of his wife’s estate, where there are children, or child of a son, how

low so ever, and a moiety, that is, half when there are none of the above relations.

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Widow– The widow takes 1/8th of her husband’s estate, where there is a child, or child of a

son HLS, and a fourth where there are none. In case of two or more wives, the share is not

increased. The wives divide the share equally amongst themselves.

Mother – Mother, when co-existing with the child, or the propositus, or a child of a son HLS,

or two or more brothers or sisters, whether full, consanguine or uterine, takes 1/6th. Where

there are no children, nor sons’ children, and only one brother or sister, the mother will take

one third with the widow,

True grandmother – Grandmothers, both maternal and paternal can never take any share of

the property, when there is a mother nor can paternal grandmothers inherit when there is a

father, or nearer true-grandmother, either paternal or maternal, or an intermediate true-

grandfather. The share of a maternal grandmother is one sixth, and the same share belongs to

the paternal grandmother. The share is not increased in case of two or more true grandmothers.

Daughter – When there is no son, and there is only one daughter, she takes a moiety (half of

the property as a legal share). Where there is no son, and two or more daughters, they together

take 2/3rd of property. If a daughter co-exists with a son, she inherits as a residuary, the son

getting twice than that of the daughter.

Son’s daughter – Where only one and no child or son’s son or other lineal male descendant,

she gets half. B) When two or more, and no child or son’s sons, or other lineal male

descendants, she takes two-third. C) When coexisting with one daughter and no son, or son’s

son, or other lineal male descendant, she gets one-sixth.

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Hindu Succession Act, 1956 – Under this Act, several inroads were made into the classical

concept of coparcenary. In case the coparcener wanted to make a testamentary disposition of

his share, he was allowed to do so. Before this Act, a coparcener had to ask for a partition

before he could testamentary dispose off his share. Therefore, the undivided share could not be

disposed off before the partition. S. 30 of the HSA provided for such disposition. If any member

died as part of Mitakshara undivided coparcenary, his share in the undivided property would

go by intestate succession under the act, and not by survivorship, if he left behind any female

heirs, specified in Class I of the schedule. Laws of inheritance would apply to such property,

and not survivorship.

In Kerala, the entire concept of joint family was abolished in 1975-76.

In Andhra Pradesh, unmarried daughters were introduced as coparceners, in 1985.

In Tamil Nadu, an identical Act was passed in 1989.

Maharashtra and Tamil Nadu followed suit in 1994.

Hindu Succession (Amendment) Act, 2005 – Daughters made coparceners.

No application of doctrine of survivorship for Hindu Male Coparceners. Survivorship has

expressly been retained for female coparceners. Therefore, if a female coparcener died, it was

ensured that the property would not go to her husband, but back to the coparceners in her

father’s home.

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Hindu Law – An intestate Hindu Female dies, leaving behind the following relations: (a) Son

S, (b) Daughter D, (c) Pre-deceased daughter’s two sons, P and Q, (d) Pre-deceased son’s two

sons, A, B, and a daughter DD, and (e), husband H. Son-1/5th , Daughter-1/5th, P,Q => 1/10th

each, (d) 3X1/15th each, (e) 1/5th. An intestate Hindu female dies, leaving behind the following

relations: (a) brother B, (b) two sisters, S and SS, (c) Pre-deceased Brother’s two sons, P and

Q, (d) Pre-deceased Sister’s daughter D, (e) Step-mother M, (f) Paternal Uncle U, and (g)

Stepfather F. Paternal uncle, and stepfather do not get anything. The rest get 1/6th, distributed

by representation.

Points of similarity and distinction between the Mitakshara and the Dayabhaga Laws

Mitakshara

1. The son gets a right by birth in the joint family property. In case he is adult, he can demand

partition even during the life time of his father.

2. He has a say and can prevent his father from unauthorized alienation of ancestral properly.

3. A coparcener has no right to alienate his share in the joint family property. On his death

without male issue, his interest survives to his brother.

4. The widow of the deceased coparcener cannot enforce partition. She has a right of

maintenance.

5. The essence of a coparcenary is unity of ownership.

Dayabhaga

1. He has no right in the joint family property so long as his father is alive.

21
2. The father is absolute owner of the property and can deal with it the way he likes.

3. Each adult member male or female has a right to demand partition and can alienate his/her

interest and on death his/her share will be inherited by his her heirs.

4. The widow becomes a coparcener with her husband's brother and can demand partition.

5. The essence is unity of possession and not ownership.

Karta of Joint Family: Position, Powers and privileges; Alienation of property by Karta

Concept of Karta in Hindu Joint Family

In a Hindu Joint Family, the Karta or Manager occupies a pivotal and unique place in that

there is no comparable office or institution in any other system in the world. His office is

independent of any other and hence his position is termed as sui generis.

POSITION

Who can be a Karta? Senior-most Male Member: The senior-most male member of the family

is entitled to this position and it is his right. His right is not subject to any agreement or any

other understanding between the coparceners. He may be aged, infirm or ailing, yet if he is still

alive, then he shall be entitled to Kartaship.

But once the Karta dies, the position passes to the next senior-most male member; it may be

the uncle, or brother or son.

Junior Male Member: By agreement between the coparceners, any junior male member can

be made a by agreement between the coparceners, any junior male member can be made a

22
Karta. In this case, withdrawal of the coparcener’s consent is allowed at any point of time.

Female Members as Karta: Regarding the issue of female members of a family assuming

Kartaship, there has been considerable amount of discussion in the Supreme Court of India as

well as the High Courts. The Nagpur High court once held that though a mother is not a

coparcener, she can be the Karta in absence of male members. But the Supreme Court reversed

the Nagpur High Court’s findings in another judgment and declared that no female member

can assume Kartaship whatsoever.

To put an end to this controversy, few States namely, Kerala, Andhra Pradesh & Karnataka

have amended their succession laws so that equal rights are provided to females as compared

to the males in the family.

CHARACTERISTICS OF A KARTA: Karta’s position is sui generis. As had been explained

earlier, his position/ office are independent and there is no comparable office in any system in

the world.

He has unlimited powers and even though he acts on behalf of other members, he is not a

partner or agent.

He manages all the affairs of the family and has widespread powers.

Ordinarily he is accountable to no one. The only exception to this rule is if charges of

misappropriation, fraud or conversion are leveled against him.

He is not bound to save, economise or invest. That is to say that he need not invest in land if

the land prices are about to shoot up, and hence miss out on opportunities etc. He has the power

23
to use the resources as he wishes, unless the above mentioned charges are leveled against him.

He is not bound to pay income of joint family in any fixed proportion to other members. This

means that the Karta need not divide the income generated from the joint family property

equally among the family members. He can discriminate one member from another and is not

bound to treat everyone impartially. Only responsibility is that he has to pay everyone

something so that they can avail themselves of the basic necessities such as food, clothing,

shelter, education etc.

Apart from all the unlimited powers that are bestowed upon the Karta, he also has liabilities

thrust on him.

Karta’s Liabilities: Karta has to maintain all the members of the joint family properly. If there

is any shortfall in his maintenance, then any of the members can sue for maintenance.

He is responsible for marriage of all the unmarried members in the family. Special emphasis is

laid with respect to daughters in this case.

In case of any partition suit, the Karta has to prepare accounts.

He has to pay taxes on behalf of the family.

Karta represents the family in all matters including legal, religious and social matters.

Powers of Karta: The powers of a Karta are divided into two parts:

Power of Alienation: The most important case with respect to Karta’s power of alienation is

Rani v. Shanta. The Karta has very limited powers with respect to alienation of the joint family

24
property. The Karta can alienate the joint family property only with the consent of the

coparceners. Alienation can be done only for three purposes:

Legal Necessity: The term “legal necessity” has not been expressly defined in any law or

judgment. It is supposed to include all those things which are deemed necessary for the

members of the family. “Necessity” is to be understood, not in the sense of what is absolutely

indispensible, but what would be regarded as proper and reasonable. If it is shown that family’s

need was for a particular thing, and if property was alienated for the satisfaction of that

particular need, then it is enough proof that there was a legal necessity.

A few illustrative cases are:

a) Food, shelter and clothing.

b) Marriage (second marriages are not considered a legal necessity).

c) Medical care.

d) Defense of person accused of a crime (exception to this rule is murder of a family member).

e) Payments of debts, taxes etc.

f) Performance of ceremonies (like marriage, grihapravesham).

g) Rent etc.

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The Hindu Succession Act, 1956 General rules of succession of a Hindu male and female

dying intestate under the Hindu Succession Act

section 15 of the Hindu Succession Act, 1956 which deals with general rules of Succession in

the case of female Hindus dying intestate in view of the fact that there have been vast changes

in the social scene in the past few years.

The Law Commission felt that where amendments have been made entitling a woman to inherit

property from her parental side as well as from her husband's side, it is justified if equal right

is given to her parental heirs with the heirs on her husband's side to inherit her property earned

by her own skill, in case she dies intestate. Further, social justice demands that the women

should be treated equally both in the economic and social sphere.

It is, in this context, the Commission proposed an amendment to section 15 of the Hindu

Succession Act. To achieve the objective stated above, Report No. 207 has been submitted by

me.

Scheme of Succession in the case of a Hindu Female

Section 15 of the Hindu Succession Act propounds a definite and uniform scheme of

Succession to the property of a female Hindu who dies intestate. There are also rules set out in

section 16 of the Hindu Succession Act which have to be read along with section 15 of the Act.

Section 16 of the Hindu Succession Act provides for the order of succession and the manner

of distribution among heirs of a female Hindu.

Relevance of Source of Acquisition

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The group of heirs of the female Hindu dying intestate is described in 5 categories as 'a' to 'e'

of section 15(1) which is illustrated as under:

In a case where she dies intestate leaving property, her property will firstly devolve upon her

sons and daughters so also the husband. The children of any pre-deceased son or daughter are

also included in the first category of heirs of a female Hindu;

In case she does not have any heir as referred to above , i.e. , sons, daughters and husband

including children of any pre-deceased sons or daughters (as per clause 'a') living at the time

of her death, then the next heirs will be the heirs of the husband;

Thirdly, if there are no heirs of the husband, the property would devolve upon the mother and

father;

Fourthly, if the mother and father are not alive, then the property would devolve upon the heirs

of the father which mean brothers, sisters etc;

The last and the fifth category are the heirs of the mother upon whom the property of the female

Hindu will devolve in the absence of any heirs falling in the four preceding categories.

This is the general rule of Succession, but the section also provides for two exceptions which

are stated in sub-section (2). Accordingly, if a female dies without leaving any issue, then the

property inherited by her from her father or mother will not devolve according to the rules laid

down in the five entries as stated earlier, but upon the heirs of father. And secondly, in respect

of the property inherited by her from her husband or father-in-law, the same will devolve not

according to the general rule, but upon the heirs of the husband.

27
The basis of inheritance of a female Hindu's property who dies intestate would thus be the

SOURCE from which such female Hindu came into possession of the property and the manner

of inheritance which would decide the manner of devolution.

Self Acquired Property - A Grey Area

The term 'property' though not specified in this section means property of the deceased

inheritable under the Act. It includes both movable and immovable property owned and

acquired by her by inheritance or by devise or at a partition or by gift or by her skill or exertion

or by purchase or prescription.

The section does not differentiate between the property inherited and self-acquired property of

a Hindu female; it only prescribes that if a property is inherited from husband or father-inlaw,

it would go to her husband's heirs and if the property is inherited from her father or mother, in

that case, the property would not go to her husband's, but to the heirs of the father and mother.

This section has not clearly enumerated and considered about succession of a female Hindu

property where it is self-acquired. Or to put it this way, the Legislators did not contemplate that

Hindu females would be in later years having self-acquired property and in certain cases, where

her heirs in the first category fail, the property would devolve totally upon her husband's heirs

who may be very remotely related as compared to her own father's heirs.

This is very aptly illustrated by the following illustration:- A married Hindu female dies

intestate leaving the property which is her self-acquired property. She has no issue and was a

widow at the time of her death. As per the present position of law, her property would devolve

in the second category, i.e. to her husband's heirs.

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Thus, in a case where the mother of her husband is alive, her whole property would devolve on

her mother-in-law. If the mother-in-law is also not alive, it would devolve as per the rules laid

down in case of a male Hindu dying intestate i.e. if the father of her deceased husband is alive,

the next to inherit will be her father-in-law and if in the third category, the father-in-law is also

not alive, then her property would devolve on the brother and sister of the deceased husband.

Thus, in case of the self-acquired property of a Hindu married female dying intestate, her

property devolves on her husband's heirs. Her paternal and maternal heirs do not inherit, but

the distant relations of her husband would inherit as per husband's heirs.

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 Table Of Content

Declaration

Certificate

Acknowledgement

Joint Hindu Family 1-29

Conclusion 30

References 31