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Kusum & Poonam Pradhan Saxena - Family Law/Family Law/VOLUME II/CHAPTER 2 HINDU JOINT FAMILY
CHAPTER 2
HINDU JOINT FAMILY
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. Under Hindu law therefore the joint family system came first in historical order and the individual recognition of a person distinct from the family came later. 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 diluted1., has survived the lashes of time, the judicial and legislative onslaught and the Hindu society still recognises the joint family and joint family property as unique entities having no similar concept alive anywhere else in the world.
COMPOSITION OF HINDU JOINT FAMILY : CLASSICAL CONCEPT
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 father's joint family and joins her husband's joint family as his wife. If a daughter becomes a widow or is deserted by her husband and returns to her father's house permanently, she again becomes a member of her father's joint family. Her children however don't become members of her father's joint family and continue being members of their father's joint family. Even an illegitimate son of a male descendant would be a member of his father's joint family.3.^ A child in womb till it is born is not a member of the joint family for taxation purposes4.^ but is treated as in existence for certain purposes under Hindu law.
Fig. 2.
In Fig. 2.1, A is the seniormost male member. He together with his wife, W , his two sons S1 and S2 and their wives W 1 and W 2, grandsons S3 and S4 and their wives W 3 and W 4, great-grandson S5 and his wife W 5 and great-great grandson S6 will form a Hindu joint family. D 1, D 2 and D 6 will be members of the joint family of A till they are unmarried. On their marriage they will cease to be the members of A 's joint family and will be part of their husband's joint family. To bring into existence a joint family for the first time the presence of the seniormost male member is an essential condition. However, once the joint family comes into existence it continues despite the death of this male member. Fresh members are added by marriage of lineal male descendants and birth of children in the family while the existing members may die, as death is a natural phenomenon. The continuation of the joint family is not restricted in point of time and until it ends by the death of all members of the family capable to form such family, it continues.
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. The Mitakshara doctrine of joint family property is founded upon the existence of an undivided family as a corporate body.5.^ The first requisite is the family unit, and the possession by it of family property is the secondary requisite. Such body with its heritage, is purely a creature of law and cannot be created by acts of parties save in so far that by adoption a stranger may be affiliated as a member of that corporate family.6.^ In absence of any evidence to the contrary a uterine brother is a member of the Hindu joint family in Nepal.7.
OUSTER OF A MEMBER FROM THE JOINT FAMILY
An unmarried daughter ceases to be a part of her father's joint family on her marriage and may regain her status if she becomes a widow or if on being deserted by the husband comes back to her father's house permanently. A child male or female born in the family can cease to be a member of this family if he or she is given in adoption to another family by a
person competent to do so under the law. Since adoption is an irrevocable act, such child cannot become a member of this family again in future. The marriage of a lineal male descendant under the Special Marriage Act, 1954 to a non-Hindu will result in his automatic severance from the joint family and he cannot become a member of this family even by agreement.8.Till the passing of the Caste Disabilities Removal Act, 1850, also known as the Freedom of Religion Act, conversion of a Hindu to another faith meant an automatic expulsion from the joint family. Since the Act protected and removed the disabilities imposed earlier on a convert,9.^ he or she could not be so expelled from the joint family when they ceased to be Hindus by converting to another faith. Yet, since a Hindu joint family is an institution available only to Hindus under Hindu law, such converts can neither form a joint family nor claim the benefit of it for taxation purposes. It has been held that a Hindu father with his Christian wife and a son will form a Hindu joint family.10.^ The correctness of the decision is doubtful, as in a joint family the father and son constitute a coparcenary. In the coparcenary, the son has a right by birth. As being Hindu is an essential qualification to be a member of the joint family, the son of a Hindu father by a Christian mother need not be a Hindu in all cases. He will be a Hindu only if he is being brought up as a member of his Hindu parent's tribe or community. In other words, his religion cannot be determined at the time of his birth but is dependent upon his being brought up as a Hindu. As membership of a son in the joint family is to be determined at the time of birth, a son who may not be a Hindu would not be a member of his father's joint family.11.In fact, a Hindu man marrying a non-Hindu is incompetent to form a Hindu joint family. Presently marriages between a Hindu and a Christian can be validly solemnised under the Special Marriage Act, 1954 and under the Indian Christian Marriage Act, 1872. If they marry under the former Act, a Hindu man will cease to be a member of the joint family, there is no reason why the same consequences should not apply if they marry under the latter Act. Thus, the concept of a Hindu joint family would mean a Hindu father, having a Hindu wife and Hindu children. It is a Hindu joint family and cannot comprise non-Hindu members let alone a family having only a Hindu father, a non-Hindu wife and children whose religion cannot be determined at birth but is dependent upon the contingency of them being brought up as Hindus.
COPARCENARY
Coparcenary is a narrower institution12.^ within a joint family comprising only male members.13.^ The primary purpose of understanding the concept of coparcenary is to determine the group of persons who can offer spiritual ministrations to the father. It signifies a relationship. These descendants, i.e. son, son of a son, son of a son of a son also have a right by birth in the property of the father and therefore its incidental implications are also property related. Gradually the spiritual aspect was dominated by the understanding of the concept in relation to the property that they can collectively own. With this segregation between the legal purpose and the religious purpose, the concept of coparcenary, which initially had the dominant objective rooted in relationship, is currently understood to ascertain the rights and obligations of the members of the family in the property owned by the joint family which is also called the joint family property or the coparcenary property. The seniormost among the coparceners is called the last holder of the property and from him a continuous chain of three generations of male members form the coparcenary. All the coparceners have an interest in the coparcenary property by birth and have a right to ask for partition of the same. Under the classical law no female could be a member of coparcenary.14.^ A person removed by more than four degrees is not a coparcener.15.^ An illegitimate son of a lineal male descendant is a member of the joint family but is not a coparcener.16.
Fig. 2.
In Fig. 2.2, a family comprising the father, F , his wife, W , his daughter D , three married sons, S1, S2, S3, with their wives W 1, W 2, W 3, and married grandsons, S4 and S5 with their wives W 4 and W 5 and a great grandson S6, all will be members of a joint family. However, the daughter will be a member of this family till she is unmarried but as far as the coparcenary is concerned, father's wife, W , as also the lineal descendants' wives, W 1, W 2, W 3, W 4 and W 5 and the daughter D will not be members of the coparcenary and the father, F , his three sons S1, S2 , S3 , grandsons S4 and S5 and great-grandson S6 would be members of coparcenary and will have a right by birth in the ownership of this property.
INCIDENTS OF HINDU JOINT FAMILY
(i) 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 the lower links are added e.g. , in Fig. 2.3, the seniormost male member A with his wife W and two sons constitute a joint Hindu family. One son S1 is married and has a son S3. On the death of A , the joint family does not end and it continues with W , W 1, S1, S2 , and S3 as its members.
Fig. 2.
allowed a large exemption if he was taxed as the manager of a joint Hindu family than if he is taxed as an individual. It also means that if the Hindu joint family is taxed as a unit the individual members are not liable to be charged in respect of what each member receives as his or her share of the joint income. The court held that he was to be assessed as the Karta of the Hindu undivided family. Explaining the concept of a Hindu undivided family and a coparcenary and the distinction between the two, the court observed that while for a coparcenary the presence of at least two male members in the joint family is a necessary requirement, a Hindu joint family can continue even with one male member, and accordingly in this case the son was competent to be assessed as the Karta of his joint family.
Though every Hindu family is presumed to be a joint Hindu family yet the strength of the presumption necessarily varies in each case.27.^ The presumption is peculiarly strong in the case of father and sons,28.^ sons of one father29.^ and also in the case of brothers30.^ than in case of cousins. The further one goes from the founder of the family the presumption becomes weaker and weaker.31.^ Even where one son separates from the father, the other sons, more so in case they are minors, would be presumed to be joint with their father.32.^ This presumption of jointness can be rebutted by direct evidence or by course of conduct. Thus, where an estate was originally ancestral belonging to a joint family, the presumption of law is, that a family once joint retains that status and this presumption can only be rebutted by evidence of partition or acts of separation. The onus probandi lies on the party who claims a share in such estate to prove that it is a divided family33.^ or the one who disputes the joint status of the family.34.^ Where a person claims property, as on partition, it is he who has to prove that there was a division of the joint family estate.35.^ So, till some positive action is taken to effect partition of a joint family property, it would remain joint family property.36.^ It is also settled that there is no presumption that when one member separates from others, the latter remain united and whether the latter remain united or not must be decided on the basis of the facts of each case.37.
No Presumption that the Hindu Joint Family possesses Joint Property or any Property at all
A Hindu joint family is presumed to be joint in food, worship and estate, yet there is no fundamental requirement of law that it must possess joint property. Practically it is difficult to conceive of a situation where the joint family members are living together and yet do not have some common or joint items of property. They may not be expensive items but a normal common habitation is indicative of common sharing of at least some household items. Similarly, a common kitchen indicates utensils and kitchen appliances that can be shared; likewise, a common puja room will have common things that may be owned and used by the family jointly. However, in law there is no presumption that a joint family possesses joint family property or any property at all or that it should be of value.38.^ This has to be shown by affirmative evidence.39. Similarly, proof of existence of a joint family does not lead to the presumption that property held by any member of the family is joint40.^ and the burden rests upon anyone asserting that any item of the property was joint to establish the fact. But where it is established that the family possessed some joint family property which from its very nature and relative value may have formed the nucleus from which the property may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property.41.
While maintaining joint family status, property can also be acquired in the name of different members individually.42.^ Even where the Karta purchases property in the name of his wife it will not be presumed to be the joint family property43.^ unless there is evidence that he could not have acquired the property with his income or the acquisition of it was not in keeping with his financial position.44.^ The important thing to consider is the income which the nucleus yields. A building in occupation of the members of a family and yielding no income could not be a nucleus out of which acquisitions could be made even though it might be of considerable value. On the other hand, a running business in which the capital invested is comparatively small might conceivably produce substantial income, which may, well form the foundation of the subsequent acquisitions. These are not abstract questions of law but questions of facts that have to be determined on the facts and circumstances of each case.45.
Position when there is only One Male Member
A single male or a female cannot constitute a joint Hindu family individually even if the assets in their hands are purely ancestral.46.^ Further, presence of a male member is an essential requisite to start a joint Hindu family. However, it is not necessary that there should be at least two male members to form a Hindu undivided family as a taxable entity or for its continuity. Where the joint family comprises a man, his son, and their wives, all of them together would constitute a joint Hindu family. On the death of the father, the family comprising the son, his wife and his mother would maintain the same status, viz. , a single male member with female members of the joint family can constitute a joint Hindu family.47.^ Similarly, where two out of three married brothers die, the surviving brother and the widows of the deceased coparceners will continue to constitute a Hindu joint family48.^ and therefore the arrears of maintenance received by a widow of the deceased coparcener will be exempt from tax under s. 14(1) of the Act.49.
One of the basic arguments against the holding that a single male member can form a joint family is that his authority over the property in his hands, whether separate or ancestral, is absolute. He can dispose it of in any manner he likes. He also has the capability to treat the joint family property as his separate property and thus he should be treated as an individual for the purposes of income tax. To that Rangnekar J. said in Commissioner of Income Tax v. Lakshmi Narayan50.^ that the
powers of a sole surviving coparcener over disposal of the coparcenary property are subject to well-recognised rights of the female members of a family. The widow of a deceased coparcener has a right to be maintained out of the family property and a right to a due provision for her residence. An unmarried daughter has a right to maintenance and to marriage expenses. Similarly, the disqualified heirs such as of unsound mind have similar rights. If the rights of these persons are threatened or if the holder of the estate is dealing with the property in a manner inconsistent with or endangering the rights of these persons, he may be restrained by a proper action from acting in that manner. Similarly, the widow of a deceased coparcener may adopt a son to her deceased husband and he would then become a coparcener with the sole surviving coparcener. Then expenses of religious ceremonies such as 'Shraddha' relating to the deceased coparceners also have to be provided from such property. Therefore, only because there is no coparcenary it does not follow that there is no undivided family.
Even in the absence of an antecedent history of jointness, a Hindu male can constitute a joint Hindu family with his wife and unmarried daughter. There is an assumption that joint and undivided family is the normal condition of Hindu society. The presumption, therefore, is that the members of a Hindu family are living in unison, unless the contrary is established. The absence of an antecedent history of jointness between a Hindu man and his ancestors is no impediment to his forming a joint Hindu family with his wife and unmarried daughter or with other females in the family. 'Those that are called by nature to live together, continue to do so'51.^ and form a joint Hindu family. A single male may constitute an undivided family with his wife and daughter.
Continuation of a Joint Family at the Instance of Only Female Members
The term 'continuation' suggests the existence of a joint family in the past and the maintenance of the same status in the present. It is different from starting or forming a joint family for the first time and therefore the conditions for maintaining the same status are different from initiation or starting of the family. On the question whether there can be a Hindu undivided family comprising only female members, the Apex Court has held52.^ that on the disappearance (death) of the last male member, which suggests that a male member was present in the joint family, the other members of the family though not coparceners, continue to be members of an undivided family. So, on the death of the sole male member of a Hindu undivided family, females who were earlier members of the Hindu joint family are allowed to continue with that status. So long as the property that was originally of the joint Hindu family remains in the hands of the widows of the members of the family and is not divided among them, the joint family continues.53.^ The law provides that so long as it is possible in the nature of things to add a male member to the family, a joint family does not come to an end.54.^ Accordingly, where the joint family comprises two brothers with their wives, on the death of both the brothers, their two widows have the capability to add a male member to the family if one of them was pregnant or they decide to adopt a male child; in this manner the joint family continues. The test laid down is the potentiality of the widows to bring a male member into existence either by nature or by law.55.^ In Attorney General of Ceylon v. A.R. Arunachalam Chettiar ,56.^ a father and his son constituted a joint family governed by the Mitakshara school of Hindu law. They were domiciled in India and had trading and other interests in India, Ceylon and far Eastern countries. The undivided son died in 1934 and the father became the sole surviving coparcener in the Hindu undivided family to which a number of female members belonged. The father died in 1938 and the question to be determined was whether he died as a member of joint family or as a separate member because under the relevant ESTATE DUTY ORDINANCE, it was provided that property passing on the death of a member of a Hindu undivided family was exempt from payment of estate duty. Here at all material times, the female members of the family had the right to maintenance and other rights in the property. The widows in the family including the widow of the predeceased son also had the power to introduce coparceners in the family by adoption though that power was exercised after the death of the father. It was held that the deceased at his death was a member of Hindu undivided family, the same undivided family of which his son, when alive was a member and of which the continuity was preserved after the father's death through adoptions by the widows of the family.
One thing is noteworthy here. All these cases involved a situation where the joint family was in existence and had one or more male members in this family. The status of this family was determined when the male members died and only females were left. In these cases, courts held that a joint family did not end if the females had the capability to add a male member in the family. However, in none of the cases the claim was from the females to form a joint family for the first time.
Continuation of Joint Family at the Instance of only Daughters
Under Hindu law the presence of a male member is not necessary for the continuation of a joint family so long as the females who became members of the family by marriage to lineal male descendants maintain the joint status and have the capability to add a male member to the family either by giving birth to sons or adopting a son to them. However, where a situation is reached when it is not possible to add a male member to the family, the joint family will come to an end, e.g. , in Fig. 2.6, where the joint family initially comprised the father F his wife W , two sons S1 and S2 and their wives W 1 and W 2, and two daughters D 1 and D 2, on the death of the father, mother and the sons, the widows in the family have the capability to add a male member in the family while remaining joint and the family will continue as a joint Hindu family.
Fig. 2.
exactly the same facts, the court held that when the property was received by the assessee on partition, he was a single member and did not constitute a Hindu undivided family. His status was that of an individual. The fact of his marriage did not alter the position and, in the absence of a son, the personal law of the assessee regarded him as the owner of the property received by him on partition and the income therefrom as his individual income. The Gujarat High Court,70.^ also held that a sole surviving coparcener of a Hindu undivided family is the owner of the property, and therefore even the existence of a female member did not affect the absolute right of the male member to deal with and enjoy the property as his own as if it was his absolute property. The character of the property that he holds as a sole surviving coparcener is analogous to that of his exclusive property and makes him an individual rather than the head of the joint family. Rajasthan High Court has also held that a husband and wife alone cannot form a Hindu undivided family as a wife cannot create a charge on husband's property.71.^ It is the personal obligation of the husband to maintain the wife even though he has no property. In Seth Tulsidas Bolumal v. Commissioner of Income Tax72.^ an assessee was the karta of a joint Hindu family consisting of himself, his wife and major son. He converted some of his individual properties as joint family property by a declaration. All these properties were assessed as income of the Hindu undivided family. The joint family properties were partitioned five years later, between the assessee and his son, each taking a half share i.e. , the father and his wife separated from the major son. For the assessment year subsequent to the above partition, the assessee claimed that the amounts which he paid to the smaller joint family was not his individual income, but that of the smaller Hindu undivided family. The court repelled that contention and held that the portion of the converted asset which fell to the share of the assessee after partition was his individual property, notwithstanding the fact that the karta and his wife formed a Hindu undivided family. The reasoning of the court was that, in the absence of a son, the property belonged to the Hindu male (karta) absolutely and, therefore, the joint family had no right in the property or the income arising therefrom. The gist of the judgment was that a Hindu male and his wife would form a joint family but the properties held by him may be his separate properties, as that would depend on the facts and circumstances of each case.
However in Kalyanji Vithaldas 's case73.^ a Hindu man having a wife and a daughter claimed that the properties held by him were joint family property and the Judicial Committee disagreeing with them observed:
It would not be in consonance with ordinary notions or with a correct interpretation of law of the Mitakshara to hold that property, which a man has obtained from his father, belongs to a Hindu Undivided family by reason of his having a wife and daughters'Interest' is a word of wide and vague significance and no doubt it might be used of a wife's or daughter's right to be maintained which right accrues in the daughter's case on birth, but if the father's obligations are increased, his ownership is not divested, divided or impaired by marriage or the birth of a daughter. This is equally true of ancestral property belonging to himself alone as of self-acquired property.
They, therefore held that in all cases where the family comprised a man, his wife and daughters only or only himself and his wife, the income falling to their shares cannot be treated as income belonging to the joint Hindu family. Even where the sources from where the income received were ancestral but merely because the source held by the member who received it from his father and was on that account ancestral, the income could not be deemed for the purpose of assessment to be income of the Hindu undivided family even though a wife had rights to be maintained under Hindu Law.
On the other hand in complete contrast to the aforesaid judgments in Narendranath 's case,74.^ the Supreme Court held, almost on similar facts, that the ownership of the dividing coparcener is such that female members of the family may have a right to maintenance out of it and, in some circumstances, to a charge for maintenance upon it and therefore when a coparcener having a wife and two minor daughters and no son receives his share of the joint family properties on partition, such property, in the hands of the coparcener, belongs to the Hindu undivided family comprising himself, his wife and minor daughters and cannot be assessed as his individual property. The Patna and Allahabad High Courts75.^ and recently the Gujarat High Court have also held76.^ that a husband and a wife can form a joint family all by themselves, as every Hindu family is joint until contrary is proved. Where a coparcener obtains property on partition and then subsequently marries, the status of the property that he holds is either ancestral or joint family property. According to the Karnataka High Court in such a situation the property in the hands of such a person will be joint family property because if he gets a wife, he will be burdened with an obligation to maintain her and if he later begets a son the character of the property will again be termed as joint family property. If he begets only daughters, the burden of maintaining them will be fastened on the property. According to the reasoning of the Karnataka High Court, even in the hands of a single male, the character of the property is that of coparcenary property as he is given the title of a sole surviving coparcener. The Supreme Court has held77.^ that as far as the obligation to maintain the wife is concerned, the obligation is personal as well as with respect to the property of an individual and therefore the obligation to maintain the wife extends with respect to the personal property of the husband. The court said that as far as the self-acquired property of an individual is concerned, he has to be assessed as an individual even though he with his wife and daughters constitutes a joint family. In other words the character of the family may differ from the character of the property it may possess. The family may be a joint family but the property that its head may possess may be his separate property. Therefore, what the court said was not that a Hindu male with his wife cannot constitute a joint family but that with respect to his separate property he has to be assessed as an individual. There can therefore be a joint family comprising a man and his wife.78.
The Supreme Court further held,79.^ that the property which a coparcener obtains on partition does not become for all times his individual and separate property. If he has a wife or a daughter depending on him the property will be charged by the obligation to maintain them. If he marries later, his ancestral or self-acquired property will be burdened by an obligation to maintain his wife. If he begets a son, that son becomes entitled to a share in the property which thereby revives the character of a joint family property. If he begets only daughters, the obligation to maintain them will be fastened on the property. It is not as if an unmarried Hindu male obtaining a share of ancestral property in partition retains property as his absolute property even after marriage, encumbered by any obligation to maintain his wife or other dependants. In that absolute sense, it may not be his absolute property after he marries. It sheds the character of separate property and revives its character as joint family property of the smaller unit consisting of himself and his wife. The obligation is with respect to the ancestral property only and not with respect to the separate or self acquired property.
Conclusion
In both the conflicting opinions, the arguments are as follows. The authorities that subscribe to the view that a man and his wife alone cannot form a joint family even if the husband receives a share from the property by virtue of being a coparcener, rely on the argument that as a sole surviving coparcener, he has absolute powers of disposal over it and therefore his ownership is akin to separate ownership. Meanwhile, the other view is that though he may for the time being be treated as having an absolute ownership over the property yet the females have a right of maintenance out of this property and this differentiates his ownership from the one that he may have over his exclusive or personal property where, though he has an obligation to maintain the female dependants, it remains a personal obligation and is not with respect to his separate property.
The primary question here is not whether a man and his wife can form a joint family but it is whether the husband here can be assessed in the capacity of the Karta of a Hindu undivided family with respect to the property that he possess which is to be assessed presently. Therefore, the character of the property becomes the focal point of the investigation. According to the court, if a man receives property after a partition of the joint family of which he was previously a member, and gets married then even where no child is born, he is to be assessed with respect to that property as the Karta of a Hindu undivided family. However, if this person is not only married but also has a daughter, then with respect to his separate property or self-acquired property he is still to be assessed as an individual. So the character of the property in his hands will determine how he is to be assessed and not the fact whether he has a son or not, as even in the presence of a son he is to assessed as an individual with respect to his separate properties.
Two basic arguments have been used here. One is the right of a sole surviving coparcener over this property and the other is the maintenance right of females over this property. Both the arguments have substance in themselves but cannot and should not be used in isolation. If seen in isolation they will lead to contradictory conclusions. The right of maintenance cannot be ignored as ignoring it will only create confusion; therefore both have to be seen together to make the law certain.
It is true that under Hindu law a Hindu male receiving property on partition in absence of a son holds it as his separate property till a son is born but he is always described as a sole surviving coparcener in relation to his share. The son on birth becomes a coparcener having an equal interest in this property with the father and it is the conception of the son who is subsequently born alive that restricts or puts limitations on the power of the father to dispose of the property in any manner he likes. However, till the birth of the son a Hindu male has no impediments on his power of sale of the property. On his death, the property will go by inheritance to the heirs and not by survivorship, survivorship being an essential feature of ancestral/coparcenary/joint family property. The question arises, can the property that goes by inheritance on the death of the holder (owner) of this property and not by survivorship be termed as joint family property? The birth of a son would clearly determine the character of a property as joint family property but should future possibilities or eventualities have a bearing on the decision and assessment at present? The situation has to be viewed in light of what is the character of the property and composition of the family presently and not what may happen in future. Thus, presently as the situation stands, absolute powers of disposal, no right of partition in favour of anyone, and application of laws of inheritance make it look like separate property in contrast to the collective ownership and consequent restrictions on alienation and application of doctrine of survivorship, the essential distinguishing features of the two kinds of properties. However, a surface reading of these distinguishing features can lead to an erroneous assumption. Except for the fact that nobody can demand a partition of this property, the other two terms viz, powers of disposal and heritability of the property cannot be the decisive factors as their consequences vary depending upon whether the property was the separate property of an individual or whether it was previously joint and now in the hands of a sole surviving coparcener. Where separate property is inherited, the heirs get it without any charge over it. But where the property of the sole surviving coparcener is inherited and there were females present in the family who had a claim of maintenance over this property the heirs getting the property are under an obligation to maintain them out of this property. So the argument that there is a difference between the self acquired property of an individual and the one obtained on partition in the capacity of a sole surviving coparcener as far as the right of the maintenance of the female members is concerned has substance and in fact it is this difference that makes the assessment of the property in the hands of a married Hindu male as the Karta of the joint family property. The mother, wife and a daughter have a right to claim maintenance from a Hindu male irrespective of the kind of property he possesses. The right is therefore not limited to joint family property. It means that if there is no joint family property, the rights of maintenance are not non-existent. They can be exercised even against the self-acquired property of an individual. Therefore, maintenance is both a personal as well property obligation. However, there is a difference here between the
Even in light of the Supreme Court's observation that the expressions 'Hindu undivided family' and 'Hindu joint family' are synonymous, there are some basic differences between the two:
(i) One of the basic presumptions under Hindu law is that every Hindu family is presumed to be a joint Hindu family until contrary is proved. There is no such assumption under the taxation laws for a Hindu family. On the other hand, this is the main point of contention. (ii) Under Hindu law though there is a presumption that every Hindu family is a joint family there is no presumption that it owns joint family property. Therefore, under Mitakshara law there can be a joint family without joint family property. However, the concept of Hindu undivided family under the revenue laws is linked only with the property. The concept of a Hindu undivided family without owning any property is meaningless as far as its assessment is concerned. (iii) Under Hindu law, a son in the womb of his mother in many aspects is treated as equal to a son in existence. He can also restrict the rights of a sole surviving coparcener to alienate the property, yet for the purposes of revenue laws, such a son is not taken into cognizance till he is actually born alive. (iv) The very purpose for which the expression Hindu joint family or Hindu undivided family is understood by these two legal branches, viz. the revenue authorities and Hindu law, are different. The importance of the difference lies in the fact that for the purposes of super tax a person will be allowed a larger exemption if he is taxed as the manager of a joint Hindu family than, if he is taxed as an individual.84. For imposition of tax, whether a person is to be assessed as an individual or as the Karta of a joint family is the primary consideration. If the money is spent for the maintenance of a joint family member that can be shown as an expense of the joint family. Thus this remains the focal point of inquiry whenever there is an examination of the character of the family for revenue purposes. All other considerations are subsidiary. (v) These differences in approach have created a distinction between a Hindu joint family under Hindu law and a Hindu undivided family for taxation purposes. This is the reason why under Hindu law there cannot be a joint family consisting only of a mother and a daughter and the mother will not be a Karta of this Hindu family; yet for the purposes of income tax she can be assessed as the head/manager of the Hindu undivided family.85.^ Under Hindu law, to understand the concept of Hindu joint family, its composition and its unique feature has multifarious purposes. Concept of Hindu joint family is the starting point of understanding the Hindu law of ownership and devolution of ancestral property, the rights and obligations of its various members, rights of survivorship in this property, rights and modes of partition and the ascertainment of their shares. The concept of joint family also has a bearing on succession laws and the power of a member to dispose of his share inter vivos or through a Will. The purposes are beyond comparison. In complete contrast to the narrow object under the revenue laws the joint family concept under Hindu law is the starting point of a fully developed separate branch of law altogether.
LAW APPLICABLE TO MATRIARCHAL FAMILIES
The Mitakshara law of joint family is founded upon agnatic relationship, the undivided family is characterised by community of interest and unity of possession among persons descended from a common ancestor in the male line. The principal incident of matriarchal families is that descent is traced through a female ancestress. In South India, a woman with all her children forms a 'Tarvad'--an institution akin to joint family under the Mitkashara law. The members of a Tarvad live in commensality with joint rights to property86.^ by birth.87.A male descendant is a member of the Tarvad of his mother but his children are not. They belong to the Tarvad of their mother. A female member does not change her Tarvad upon her marriage. The rules of survivorship govern the devolution of property of any member of Tarvad. Property is jointly owned and managed by all members of the Tarvad but more specifically by the eldest male member called 'Karnavan'. However, he does not have any better rights in the property in comparison to other members in the family, as he is neither empowered to sell the property nor to represent the family. Under the customary Marumakkattayam law no partition of the family estate may be made as no individual could claim any property as his or her own, but items of the family property may by agreement be separately enjoyed by the members. On death, the interest of a member in the Tarvad devolved by survivorship. It is neither an essential condition nor a practice that all members of the Tarvad should live together. A woman of a particular Tarvad with her descendants can establish a different home; such a branch is known as 'Tavazhi'. Women have an interest in the Tarvad properties besides having independent or individual properties. Changes in the pattern of Tarvad were witnessed with the advent of the British. A Tarvad was defined as an impartible and corporate unit by the East India Company officials whose main interest in these matrilineal groups of South India that were a prominent land owing group was imposition of revenue related laws and regulations. These sets of rules and regulations were based on the pattern of patriarchal families and for sheer convenience of dealing with a man, they gave prominent importance to Karnavan making his position superior to that of anyone else in the family. Unawareness of the customs of the matrilineal societies led to the British carrying out various experiments with these societies. They applied the English common law and Roman law principles, principles of equity, and the patriarchal norms over these families completely distorting the concept in the process. In 1810, the provincial court ruled that an undivided share of an individual in a Tarvad could be sold
for debt contracted by him. In other words, the impartible share was made not only partible but also alienable. In 1814, the Sadar Court conferred proprietary rights on the Karnavan by applying the custom of the patriarchal Namboodris. It resulted in the gradual deterioration in status of women. Unable to comprehend the unique features governing matrilineal societies, the British encroached them with patriarchal norms and the Kerala Joint Family Abolition Act, 1975, finally brought these families to an end. Their right to the Tarvad property was brought to an end and the existing members held it as tenants-in- common. The concept of gender parity was maintained with men and women in the family having equal rights over the property.
The primary difference between the Mitakshara system of inheritance and the Marumakkattayam and Aliyasantana laws lies in the former following the patriarchy and the latter adhering to the matriarchy, i.e. , tracing descent from a common ancestress.88.
COMPOSITE FAMILIES
In certain communities particularly in Andhra Pradesh, there is a custom of existence of composite families. The culture of composite families arises by agreement between the families and the primary objective is convenience and efficient management of the family properties. When two or more families live together, work together, pool in their resources and labour and throw their gains of labour into a common stock, they are called composite families.89.^ A long duration such as living together of a few generations can in itself raise a presumption of merger of various families into composite families.90.
RIGHTS OF MEMBERS OF JOINT HINDU FAMILY
In a Hindu joint family, all its members do not have equal rights. The interest in the coparcenary property is with the coparceners, including a right to demand its partition, and a right to challenge its unauthorised alienation made by Karta. All other female members including the widows of deceased coparceners, male members beyond four generations, disqualified coparceners, and illegitimate sons of lineal male descendants, have a right of maintenance out of the joint family funds and a right of residence in the joint family home. The right of residence cannot be enforced as a matter of right if any member, including a coparcener has proved to be a nuisance to the other family members and his continued residence in the family will adversely affect the interests of the other members or disturb the peace of the family. In such cases, the Karta can hand him his share and throw him out of the family. Unmarried daughters in the family also have a right to be married out of the joint family funds.91.
LEGISLATIVE INROADS INTO THE CONCEPT OF JOINT FAMILY
One of the basic incidents of the concept of joint family is the existence of joint as well as separate property in the family. In a joint family property, the son has a right by birth while the daughter though a member of the family till her marriage, was not a coparcener and had no interest in the coparcenary property. At the time of the discussion on the Hindu Succession Bill in the Parliament in 1954-55, several parliamentarians recommended its abolition as it treated women unfavourably, but a considerable majority favoured its retention in the name of it symbolising the very essence of Hindu religion. In order to give better rights to women in the joint family property without abolishing it, the concept of notional partition was introduced in the Hindu Succession Act but the result was still an unequal treatment to women. In the light of the constitutional mandate of gender parity, these property-related provisions stood out as discriminatory and to remove that, two options were available with the legislature. First, to abolish the joint family and separate property distinction by abolishing the very concept of joint family system and the other to make the daughter also a coparcener in the same manner as a son with a right by birth in the coparcenary property. The Kerala legislature opted for the former and passed the Kerala Joint Hindu Family (Abolition) Act in 1975. The enactment was equally applicable to matriarchal families and also to patriarchal families governed by the Mitakshara law.
THE KERALA JOINT HINDU FAMILY (ABOLITION) ACT, 1975
The Kerala Joint Hindu Family (Abolition) Act received the assent of the President on 10 August 1976. It was enacted to abolish the joint family system among Hindus in the State of Kerala. It applied to both undivided families governed by Mitakshara law1^92 as well as matriarchal families including a Tarvad or Thavazhi,2^93 a Kutumba or Kavaru3^94 or an Illom.4^95 The Act abolished the right by birth of the coparceners5^96 and replaced joint tenancy by tenancy in common.6^97 Therefore on the date of the coming into force of this Act it was to be presumed that, a partition had taken place in every family and each person who was earlier entitled to get a share was deemed to hold his share as his distinct, separate and absolute property.7^98 If under the custom a female was entitled to ask for partition or was to be granted a
- State Bank of Travancore v. Aravinan Kunju Panicker , AIR 1971 SC 996 ; Jagannath v. Lakhanath , AIR 1981 Ori 51; Basittappa v. Irawwa , AIR 1988 Kant 174 [LNIND 1987 KANT 190]; Jugal v. Gobind , AIR 1992 Pat 128 ; Radhamoni v. Dibakar , AIR 1991 Pat 15 ; Bhagwan Dayal v. Reoti Devi , AIR 1962 SC 287 [LNIND 1961 SC 465].
- Raghavamma v. Chenchamma , AIR 1964 SC 136 [LNIND 1963 SC 101]; Govind Darsu v. Kuldip Singh , AIR 1971 Del 151 [LNIND 1970 DEL 60]; Charandassi v. Kanailal , AIR 1955 Cal 205; Rukmabai v. Laxmi Narayan , AIR 1960 SC 335 [LNIND 1959 SC 205].
- Sri Raghunada v. Brozon Kishor , (1876) 1 Mad 69, 89, 3 IA 154; Dulachand v. Certificate Officer , (1964) 68 CWN 349; Neelkisto Deb v. Beerchunder , (1869) 12 MIA 523, 540; Katha Perumal v. Rajendra , 1959 Mad 409.
- Chowdhary Ganesh Dutt v. Jewach , (1904) 31 IA 10.
- Indoor Kuer v. Pirthipal Kuer , AIR 1945 PC 128.
- V.M. Patel v. K.M. Patel, AIR 2000 NOC 74 (Guj).
- Mathuri Bewa v. Prafulla Routrey , AIR 2003 Ori 136 [LNIND 2003 ORI 140]; Panchani Singh v. Rani Raj Rajeshwari Devi , 1970 All LJ 983 (DB).
- Nageshar Baksh Singh v. Ganesha , AIR 1920 PC 46.
- Nazi v. Mohanlal , AIR 1957 Raj 28 LNIND 1956 RAJ 195.
- Inder Kuer v. Pirthipal Kuer , AIR 1945 PC 128 ; Ramgopal v. Mohanlal , AIR 1960 Punj 226; Chandeswar Singh v. Ram Chandra Singh , AIR 1973 Pat 315 ; Rukmabai v. Lala Lakshminarayan , AIR 1960 SC 335 [LNIND 1959 SC 205]; Kanhaya Lal v. Devi Dayal , AIR 1936 Lah 514; Moro Vishwanath v. Ganesh Vithal , (1873) 10 Bom HC 444, 468; Muna Mahto v. Raghunath , AIR 1933 Pat 153 ; Indranarayan v. Roopnarayan , AIR 1971 SC 1962 [LNIND 1971 SC 305].
- Harprasad v. Ram Devi , AIR 1964 All 64 [LNIND 1962 ALL 191].
- Chandeswar Singh v. Ram Chandra Singh , AIR 1973 Pat 315 ; Jaai Kishore v. Govind Singh , AIR 1920 Pat 128 ; Cheetha v. Baboo Miheen Lal , (1867) 11 MIA 369 reaffirmed in Shankarrao Dajisaheb Shinde v. Vithalrao Gangapatrao Shinde , AIR 1989 SC 879.
- Bannoo v. Kashee Ram , ILR 3 Cal 315 (PC); Bharat Singh v. Bhagirathi , (1966) 2 SCJ 53 [LNIND 1965 SC 204]; Girijanadini v. Birendra , AIR 1966 SC 1124.
- Naragunty Lutchmeedavamab v. Vengama Naidoo , (1861) 9 MIA 66.
- Commissioner of Income Tax , Assam v. Nand Lal Agarwal , AIR 1966 SC 899 [LNIND 1965 SC 316].
- Bhagwan Dayal v. Reoti Devi , AIR 1962 SC 287 [LNIND 1961 SC 465].
- Mathuri Bewa v. Prafulla Routrey , AIR 2003 Ori 136 [LNIND 2003 ORI 140]; Jankiram v. Nagamony , 1926 Mad 273 ; Laldas v. Motidai , (1908) 10 Bom LR 175; Pandit Mohan Lal v. Pandit Ram Dayal , AIR 1941 Ori 331; Rai Shadilala v. Lal Bahadur , AIR 1933 PC 85 ; Nisar Ahmed Khan v. Raja Mohun Manucha , AIR 1940 PC 204.
- Janakiram v. Nagamony , (1926) 49 Mad 98.
- Babu Nisar Ahmad Khan v. Babu Raja Mohan Manucha , AIR 1940 PC 204.
- Shadilal v. Lal Bahadur , AIR 1933 PC 85 ; Baishnas v. Baiadhser , (1973) CWR 993; Appalaswami v. Suryanarayanmurthy , AIR 1947 PC
- Selyaraj v. Radhakrishna , 1976 Mad 156.
- Patrama v. Bahadur , AIR 1983 All 346.
- Savitri v. Jiwan , AIR 1960 Pat 48 ; Chandreswar v. Ramchandra , AIR 1973 Pat 215 ; Prabhalila v. Sakuntala , AIR 1986 Pat 1 ; Shyamlal v. Madhusudan , AIR 1959 Cal 380 [LNIND 1958 CAL 205].
- Ananda v. Suman , AIR 1988 Cal 375 [LNIND 1988 CAL 73].
- Srinivas Krishnarao Kango v. Narayan Devi Kango , AIR 1954 SC 379 [LNIND 1954 SC 52].
- Gowli v. Commissioner of Income Tax , Mysore , AIR 1966 SC 1521.
- Commissioner of Income Tax v. Laxmi Narayan , AIR 1935 Bom 412; Anant v. Shanker , 70 IA 232 : AIR 1943 PC 196.
- Commissioner of Income Tax v. Sarwan Kumar , (1945) ILR All 509; Draupadi v. Vikram , (1938) ILR Nag 88; Anant v. Shankar , (1944) 70 IA 232; Baji Rao v. Ram Krishan , (1941) ILR Nag 707.
- Vedathanni v. Commissioner of Income Tax , 56 Mad 1.
- Commissioner of Income Tax v. Laxmi Narayan , AIR 1935 Bom 412.
- Surjit Lal v. Commissioner of Income Tax , (1978) 101 ITR 776.
- Commissioner of Income Tax v. Sarwan Kumar , 13 ITR 361.
- Commissioner of Income Tax v. Verappa Chettiar , 76 ITR 467.
- Attorney General of Ceylon v. Arunachalam Chettiar , (1957) AC 540.
- Ashok Kumar Ratanchand v. Commissioner of Income Tax , (1990) 186 ITR 475; BKD Bhatia v. Commissioner of Income Tax , (1993) 199 ITR 190 (Ker); Krishna Prasad v. Commissioner of Income Tax , (1970) 75 ITR 526; Prem Kumar v. Commissioner of Income Tax , (1980) 120 ITR 347 (All). For a contrary opinion see Commissioner of Income Tax v. Vishnu Kumar Bhaiya , (1983) 142 ITR 357 (MP); Shankar Lal v. Budhia , (1987) 165 ITR 380 (Patna).
- (1957-34) ITR Supp 42.
- See The Hindu Adoptions and Maintenance Act, 1956, s. 14(4).
- The Commissioner of Income Tax v. Sandhya Rani Dutta , JT 2001(3) SC 163 [LNIND 2001 SC 513].
- Ibid ., para 11.
- Pushpa Devi v. Commissioner of Income Tax , 109 ITR 730.
- For details, see the discussion, infra.
- Rukmini Bai v. Commissioner of Wealth Tax , AIR 1964 Orissa 274 (DB).
- Krishna Prasad v. Commissioner of Income Tax , Bangalore , (1974) ITR 493 (SC).
- Mangala v. Jayabai , AIR 1994 Kant 276 [LNIND 1994 KANT 84].
- Anant Bhikkappa Patil v. Shankar Ramchandra Patil , AIR 1943 PC 196.
- See The Hindu Succession Act, 1956, ss. 8-13.
- (1966) 60 ITR 36 (SC), [1966] 2 SCR 755.
- Surjit Lal v. CIT , (1978) 101 ITR 776.
- (1983) 142 ITR 357.
- Anilkumar B Laskari v. Commissioner of Income Tax , (1983) 142 ITR 831.
- Mukut Bihari Lal Bhargava v. Commissioner of Income Tax , (1964) 53 ITR 613.
- (1980) 170 ITR 1.
- AIR 1937 PC 36.
- NV Narendra Nath v. Commissioner , Wealth Tax , AIR 1970 SC 14 [LNIND 1969 SC 101].
- CWT v. Panna Lal Rastogi , (1974) 96 ITR 110 (Patna HC); Prem Kumar v. Commissioner of Income Tax , (1980) 121 ITR 347 (All HC).
- Commissioner of Income Tax v. Parshottamdas K. Panchal , (2002) 170 Taxation 653 Gujarat, (2002) 257 ITR 96 [LNIND 2001 GUJ 40] (Guj); Commissioner of Income Tax v. Madan Lal Parikh , (2002) 123 Taxman 603 Raj, (2002) 168 Taxation 525 Raj, 2002 (175) CTR 277 Raj. See also Bharat Kumar Chinubhai v. Commissioner of Income Tax , (1969) 71 ITR 1; CWT v. Harshadlal Manilal , (1974) 97 ITR 86; WPAR Rajagopalan v. CWT , (2000) 241 ITR 344 [LNIND 1998 MAD 1247] (Mad); Commissioner of Income Tax v. Arun Kumar Jhunjhunwalla and Sons , (1997) 223 ITR 45 (Gau); Balkrishna Goyal v. CWT , (1996) 218 ITR 671 (MP); Commissioner of Income Tax v. Krishna Kumar , (1983)
CHAPTER 3
COPARCENARY
INTRODUCTION
The primary purpose of understanding the concept of Mitakshara coparcenary was spiritual in nature. A coparcener in relation to the father is a person who can offer a funeral cake to him. This capability to offer spiritual salvation by the performance of funeral rites was with the son, son of a son (grandson), and son of a son of a son (great-grand-son)1.^ and as a consequence of it they were conferred a right by birth in the property of the father. This religious aspect that associated it primarily with relationships and spiritual benefits and not merely from the property perspective were totally sidelined later by the legal aspect. The revenue authorities view coparcenery purely from the property angle. Presently it is understood to ascertain the rights and obligations of the members in the joint family property that is also called the ancestral property or the coparcenary property.
A person is the exclusive owner of his self-acquisitions and no one else, including his family members, have the legal power to restrict his rights over the separate property, save in accordance with the provisions of law. However, under Hindu law, where a person possesses an interest in ancestral or coparcenary property he is not the sole owner of it and his son, son of his son (grandson), and son of his son of his son (great-grandson) acquire a right by birth in this property.2.^ All such sons, grandsons and great-grandsons irrespective of their numbers will be coparceners with him having joint ownership in this property. Presently the concept of coparcenary is linked with the ownership in this property.
CONCEPT : UNDER CLASSICAL LAW
The system of coparcenary is a narrower institution within a joint family comprising only male members3.. This group of persons, unlike the joint family, is related to each other only by blood or through a valid adoption. No person can by marriage and no stranger can by agreement become a member of coparcenary, as it is a creation of law.4.^ Under the classical law, no female could be a member of coparcenary. The seniormost male member is called the last holder of the property and from him a continuous chain of three generations of male members form the coparcenary. These males up to three generations from the present/last holder of the property have a right by birth in the joint Hindu family property and have a right to ask for partition of the same. Thus in Fig. 3.1, where the family comprised the father, F , his wife, W , two married sons, S1 and S2, with their wives, W 1 and W 2 and their sons, S3 and S4 and two unmarried daughters, D 3 and D 4; all will be the members of the joint family, but as far as the coparcenary is concerned, father's wife, lineal descendant's wives and the two daughters will not be members of the coparcenary but the father, his two sons, and grandsons would be members of the coparcenary and will have a right by birth in the ownership of this property.
Fig. 3.
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 seniormost male member is a must to start a coparcenary. As aforesaid, a minimum of two members is required to start and even continue a coparcenary. Moreover, the relationship of father and son is essential for starting a coparcenary. For e.g., as shown in Fig. 3.2, a Hindu male obtains his share at the time of partition from his father and then gets married. Till a son is born he is the sole male in this family and the income in his hands i.e., the share he had received at partition may be assessed as the joint family income, but he alone will not form a coparcenary. On the birth of his son, a coparcenary comprising 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. If the son dies, the coparcenary will not come to an end and will comprise the father and the son of the deceased son. Where the family consists of the father, F , his son S , his grandson SS , his great-grandson SSS , all four will be coparceners.
Fig. 3.
On the death of S , the coparcenary will consist of F , SS and SSS. If SS dies, it will continue with F and SSS. Thus there can be a coparcenary consisting of father and son or father and his grandson or the father and his great-grandson or of all of them together.
Coparcenary is not limited to four male members but is limited to four generations of male members irrespective of their numbers. In Fig. 3.3, F , his sons, S1, S2 and S3, their sons, S4, S5, S6 and S7 and their sons S8, S9, S10 and S11 will be coparceners with the rest of the male members.
Fig. 3.
COPARCENARY NOT LIMITED TO FOUR GENERATIONS FROM THE COMMON
ANCESTOR
Where a coparcenary is started, the seniormost male member with his lineal male descendants 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 a member of the joint family but will not be a coparcener as he is removed from the seniormost male member by more than four generations. In the examples cited in Fig. 3.4, F and his lineal male descendents from S1 to S6 (till seven generations) are members of his joint family. Here F , S1, S2 and S3 will be coparceners. But this does not mean that S4 will never be a coparcener. On the death of F , S1 will become the last holder of the property and if four generations are counted from him S4 will be included in the coparcenary. Similarly, on the death of S1, S5 will become a coparcener as instead of S1, S2 will become the last holder of the property. S6 will become a coparcener on the death of S2, as from S3, who will become the last holder of the property, he will be within four generations. The rule is that so long as one is not removed from the last holder of the property by more than four generations he will be a coparcener.5.^ Like in a joint family, in a coparcenary upper links are removed and lower links are added, and the coparcenary may continue indefinitely provided there are at least two male members (coparceners) maintaining the joint family status.
Fig. 3.4(i)Fig. 3.4(ii)Fig. 3.4(iii)Fig. 3.4(iv)
Fig. 3.5(i)Fig. 3.5(ii)
Fig. 3.5(iii)Fig. 3.5(iv)
In Fig. 3.5(i), where the father has two sons S1 and S2, with S3, S4 and S5 and S6, S7 and S8 as the sons of S1 and S respectively, the coparcenary will consist of F , S1, S2, S3, S4, S6 and S7. S5 and S8 are removed from F by more than four generations and they will not be included in the coparcenary. Suppose S2 dies, the coparcenary will consist of F , S1, S3, S4, S6 and S7 [Fig. 3.5(ii)]. During the life time of F , S6 and S7 also die one after the other. The coparcenary will now consist of F , S1, S3 and S4 only [Fig. 3.5 (iii)]. S8 will not be included in the coparcenary because he is still in the fifth generation as F is alive. If F dies now S1 will become the last holder of the property and the coparcenary will now comprise his three lineal male descendants i.e., S3, S4 and S5 will also be included in the coparcenary as counting from S1, he will be in the fourth generation [Fig. 3.5(iv)]. But S8 will not be a coparcener as the coparcenary property has gone to the parallel branch due to the death of his three immediate ancestors in the male line. However, as in Fig. 3.5(v) if F dies before the death of S2, S6 and S7 then S8 will be included in the coparcenary as his links with the last holder of the property existed.
Fig. 3.5(v)
SOLE SURVIVING COPARCENER
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 himself. If another coparcener comes into existence the coparcenary will be revived but if that does not happen, then the sole surviving coparcener is entitled to treat the coparcenary property as his separate property and enjoy absolute power over its disposal. However, if there are female members who have a right to maintenance out of this property, then before or after the transfer of the property, a provision has to be made for their maintenance by the sole surviving coparcener. On the death of the sole surviving coparcener the property does not go by doctrine of survivorship as no other coparcener is there, but it will go to the legal heirs of the deceased. If during the lifetime of the deceased the female members had a right of maintenance out of this property these rights will be carried along with the property to the heirs and such heirs will be under an obligation to provide maintenance to the female members out of the property.
right exists in favour of the two sane brothers, there appears no reason why it cannot exist when the coparcenary consists of only a sane and an insane person.17.
OUSTER FROM COPARCENARY
A coparcener who renounces his religion and converts to some other faith ceases to be a member of the joint family and is therefore also ousted from the coparcenary. Similar is the case where he gets married to a non-Hindu under the Special Marriage Act, 1954.18.^ However, in both these abovementioned cases, his rights in the coparcenary property will not be forfeited and he is entitled to take his share of the property. A Hindu man who gets married to a non-Hindu cannot form a coparcenary with his son.19.
A minor coparcener, if given in adoption by his competent parent, is deemed to be dead for the biological family from the date he is given in adoption to another family.20.^ His interest in the coparcenary property prior to his adoption will be taken by the surviving coparceners and when he goes to the adoptive family he goes there without any property but will acquire an interest in the coparcenary property of the adoptive family with the adoptive father as his son from the date of adoption as from that date he is deemed to be born in the adoptive family.
COPARCENARY BETWEEN A HINDU MAN AND HIS SON BORN OF A NON-HINDU
WIFE
Rosie Marie v. CWT21. 1970 Mad 249.
A Hindu male getting married to a non-Hindu female under the Special Marriage Act, 1954 is ousted from the coparcenary. But, can he form a coparcenary with the son born to him from a non-Hindu wife? The High Court of Madras considered this question in Rosie Marie 's case,22.^ and held that as such a son is a legitimate son and as per the provisions of the Special Marriage Act, 195423.his succession rights on the death of the father will be governed by the Indian Succession Act, 1925 and not by the Hindu SuccessionAct.
... this would not injunct a Hindu parent from treating a legitimate son of his, born in lawful wedlock as per the provisions of the Special Marriage Act, 1954 as an undivided member of the Hindu joint family. This joint family will be so created by the father by an option exercised for that purpose by himself and no sooner such option is exercised by him, there springs from it a Hindu joint family, which has to be recognized and whose legal entity has to be given effect to in accordance with the provisions of the Hindu law both traditional and statutory and a fortiorari by the taxing statute as well.
Like in this case, in a majority of cases the concept and constitution of the joint family and coparcenary has been discussed and explained by the Indian courts while adjudicating upon revenue matters. It must be noted here, that the court did not discuss what was the kind of property in the hands of the father and from where he had acquired it? That, it was separate property in his hands was obvious. It is submitted that the decision appears to be incorrect for the following reasons:
(i) Since the joint family and coparcenary are essentially concepts available under Hindu law having no parallels under any other law or systems; in a coparcenary the members must be Hindus, and the son here may not be a Hindu in all cases. He will be a Hindu only when he is being brought up as a Hindu and therefore in the first place it is difficult to comprehend that a Hindu man can form a coparcenary with his son whose religion is conditional on his being brought up as a Hindu. (ii) The court noted here that it was later that he declared his son to be a coparcener with him and so he can constitute a joint family. It must be remembered that in law a Hindu joint family or a coparcenary does not come into existence in accordance with the wishes or declaration by the father. It is a presumption that arises in law. Its coming into existence does not depend upon the will of a person by a mere declaration that can be exercised at his option or convenience. (iii) The decision throws open questions that are difficult to answer. The court noted that on the death of the father it is not the Hindu Succession Act, 1956 but the Indian Succession Act, 1925 that would govern succession to his property. Is the institution of coparcenary recognised under the Indian Succession Act, 1925? There is only one kind of property recognised under the Indian Succession Act, 1925 and that is separate property according to which in case of the death of a male, 1/3rd of the property goes to the widow and 2/3rd will go to the son. But if, as according to the court, the deceased constituted a coparcenary with his son, the judiciary in fact ended up changing the law of succession
in clear contradiction to a specific provision of a statute. If there was a coparcenary between the father and the son here on the death of the father the property will not be distributed between the son and the widow of the deceased but will come to the son by the doctrine of survivorship to the complete exclusion of the widow. Deprivation of her rights by a mere declaration in presence of a statute that gives her an absolute ownership by way of inheritance does not appear to be proper at all.
Accordingly it is submitted that a Hindu man cannot constitute a coparcenary with his son born of a non-Hindu wife. In Margaret Palai v. Savitri Palai,24. a Christian woman got married to a Hindu man under the Hindu Marriage Act, 1955, it was held that this marriage under Hindu law was not permissible and the woman would not even be called his legally wedded wife. She would neither be entitled to a share in the coparcenary property held by her partner nor would she be empowered to succeed to his separate property.
COPARCENARY WITHIN A COPARCENARY
There is no limitation on the number of members that a coparcenary may have. There can be a big coparcenary consisting of father, his sons, grandsons and great grand sons. There can be a coparcenary within a coparcenary comprising sons and their descendants also. If the father has separate property, on his death the sons inherit the property jointly. Now if a child is born to one of the sons he will form a coparcenary within a coparcenary. For example, in Fig. 3.7, the family comprises the father F , his two sons S1 and S2. On the death of the father the two sons will inherit the property jointly. On the birth of S3, a coparcenary will come into existence between S1 and S2 and within this coparcenary a smaller coparcenary comprising S1 and S3 will bethere.
Fig. 3.
COPARCENARY PROPERTY
Under Mitakshara law two kinds of properties are contemplated, that can be acquired by a male member viz., the joint family property or the coparcenary property and the separate property. For acquiring an interest in coparcenary property there is no obstruction by way of the wishes of the father or the consent of other coparceners. It is a right of the coparcener and cannot be defeated by the acts of the other sharers of the property. If there is coparcenary property, a male child taking birth in the family will become the owner of the property. This is in contrast to the succession to the separate property of an individual. As a person has absolute power of disposal over the separate properties, a son's right to inherit the property may be defeated by the acts of the father as during his life time he may transfer it, disinheriting his own son. In other words, there is no guarantee that he would inherit the property of the father. The father's power of disposal and the probability of exercising such powers to the detriment of the son are an obstruction in his way of inheriting the separate property.
Ownership of Coparcenary Property
The ownership in the coparcenary property is with the coparceners collectively but it is subject to the rights of the female members and other joint family member's rights of maintenance that includes unmarried daughter's right to marriage expenses. As no female could be a coparcener, she could not become the owner of coparcenary property. Minority is not a bar to its ownership, as the moment a coparcener is born he gets an interest in the coparcenary property. So long as the coparceners are joint, the title to the coparcenary property is also joint. It is demarcated and becomes exclusive only when a partition takes place and the property is divided among the members entitled to it.
INCIDENTS OF COPARCENARY
(i)Four Generation Rule
The lineal male descendants of a person, up to third generation (excluding him), acquire on birth, an interest in the coparcenary property held by him.
(ii) Creation of Law
Like a joint family, coparcenary is also a creation of law and cannot be formed by an agreement between the parties.
(iii) Only Males
