lawteacher.net-anbsphindu joint family setup

8/13/2019 Lawteacher.net-Anbsphindu Joint Family Setup

1/6

lawteacher.net http://www.lawteacher.net/indian-law/essays/a-hindu-joint-family-setup.php

A hindu joint family setup

Introduction:

A Hindu Joint Family setup is an extended f amily arrangement prevalent which has an enormous legalsignif icance in India. Simply, a Hindu Joint Family would at best be described as, the lineal descendants andtheir dependants where, the f ormer trace their origin to one common ancesto r. The underlying essence of aoint f amily is the f act that it t races its o rigin back to o ne common ancesto r and with the addition anddeaths o f members, joint f amilies can cont inue till eternity.

It is import ant t o understand that though a single familial unit, a Joint Hindu Family does not have aseparate legal identity and is no t a jurist ic perso n. Though, the only collective statutory recognition t hathas been bestowed upon a Joint Hindu Family is f or t he purpos es of taxation. Though, the def inition ishighly f lexible.

The researcher, through this paper aims at throwing so me light upon certain issues associated with theHindu Joint Family Setup; especially fo r a s tudent o f Family law. The f ocal points of the research are drawninto the following heads:

Distinction between the Mitakshara and Dayabhaga schools of law - qua t he Hindu Joint FamilySetup. An analysis into ho w, the two schoo ls o f law look at the f amilial arrangement. For e.g. In aHindu undivided family governed by the Mitakshara Law, no individual member o f that f amily canpredicate that he has a def inite share in the property o f that f amily.

A brief insight into who are the Important Role Players - the Karta and the women (especially in thecontext o f them becoming coparceners post 2005)

Status o f the Property for the Joint Family - An overview over the concept o f partition of property.The researcher also intends t o t hrow some light into t he status o f the property f or t he purposes of Taxation. It may be stat ed that f or the purposes o f the Income Tax Act (S. 171), a partit ion by metesand bounds i.e. a physical division of property is required.

Distinction Between The Dayabhaga And Mitakshara Schools:

Important terminology:

Bef ore embarking upon an explanation as to what is the distinction between the schoo ls of law, it isimportant to def ine so me import ant terms.

Coparcenary: Partnership in inheritance; joint heir ship; joint right o f succession to an inheritance.

Unity o f Possess ion: Though, a coparcenary may exist, yet till partition takes place there cannot be adefinite share f or any of the coparceners.
http://www.lawteacher.net/indian-law/essays/a-hindu-joint-family-setup.phphttp://www.lawteacher.net/


2/6

Doctrine of Survivors hip: The concept bas ically st ates that, t he property would be devolved upon thedeath of the coparcener to his next survivor, irrespective of who his heir is.

Karta: The eldest member of a Hindu Joint Family is known as t he Karta of the coparcenary. He is therepresentative of the f amily.

Alienatio n: the vo luntary and abso lute trans f er o f title and possess ion of real propert y f rom oneperson to another.

Effect Of Coparcenary:

There is a dif f erence in the way a joint f amily comes into exist ence in the Mitakshara and the Dayabhagasyst ems. Under the Dayabhaga School on the death of the Karta, the succession is per st irpes; that eachso n has an equal and absolute share. By absolute, one may note that none of the descendants of the heir inheriting have any right over the property. In addition to this, if one o f the heirs dies then, even his wife or unmarried daughter have a share over his property which is not possible under Mitakshara law.

Interest By Possession

Anot her po int of distinction between the Mitakshara and the Dayabhaga s chools is t hat a coparcener takesa f ixed share once the Karta dies. In ot her words it's a certain share. Thus, f or example a perso n diesleaving behind 4 sons, then each son would have a determined 1/4th share to the property.

Under the Mitakshara schoo l of Hindu law, it may be said that t here is a literal presumption of love andaf f ection in the f amily, i.e. there is a community interes t in the f amily property. By community interes t o nemeans that all the coparceners have an interes t in the joint f amily property. Under the Dayabhaga Schoo lthough, there is a cons tant not ion of having a f ixed share of property. Though, there may be a communityinterest as long a partit ion by metes and bounds hasn't t aken place.

Doctrine Of Survivorship

This doct rine has been explained earlier. The Dayabhaga Schoo l allows f or devolving of properties only atthe point o f succession. Thus, there is no question of inheriting any property. It is due to the application of this concept t hat there exists no coparcenary between a grandfather and his grandson under theDayabhaga Schoo l.

The application of this rule is also related because class ical Hindu Law recognised the concepts o f unobst ructed heritage and obst ructed heritage to property. By unobst ructed heritage one means t hatbetween the lineal descendants the coparcenary never ends. Thus, if one o f the chain members dies t henthe coparcenary shif ts to the next lineal descendant. This phenomenon has been accepted under Mitakshara Schoo l. On the o ther hand, the Dayabhaga Schoo l recognizes o nly obst ructed heritage.

There are two f urther diff erences between the two schools o f law that the researcher wants t o delve uponbut they would be explained in the next part of the essay owing to the f act that they involve the role playerssuch as the Karta.

Key Role Players In The Hindu Joint Family


3/6

The Hindu Joint Family being considered as t he close knit unit as it is though has a f ew prominent memberswhile its legal status is being considered. The researcher intends to ref lect t he legal st atus o f twoprominent members: the Karta, the st atus of a f emale as a coparcener post the 2005 amendment.

The Karta:

In a Joint Hindu Family, the Karta being the representative is respons ible for t he f amily. He is supposed to

oversee the income and assets o f the joint property. He is accountable to all ot her f amily members f or t heuse of their shares o f all sums which he spent. The Karta's powers and liabilities and his power of alienation are s imilar in both the Dayabhaga and the Mitakshara Schools. The dif f erence that draws acontradist inction between the two is that the latter must be in a pos ition to render full accounts at allpoints of time. On the ot her hand the Karta under the Dayabhaga School should render accounts only atthe time of partition.

As per Hindu law's convent ion, the senior mos t male member is generally the Karta of the jo int f amily. The Andhra Pradesh High Court has st ated that the Karta does not owe his posit ion to agreement or consentof ot her coparceners. His status has been a part of Hindu Culture f or long. As long as he is alive,irrespective of his age, health o r st rength, he cont inues to be Karta.

A conf lict arises when in the pres ence of a senior male member can a junior male member be t he Karta?The position o f law decided on this is that if all the coparceners agree, then a junior male member can be aKarta. Though, this is cont ingent upon the whims and f ancies o f the coparceners who may withdraw their consent at any time.

Can A Female Member Be T he Karta?

The Mitakshara School set s a pos ition of law, that on marriage the wif e entails ownership rights to her husband's s eparate and joint f amily property. Similarly, a daughter garners this right at birt h. The

contingency to this being that there is a distinction between males and f emales. Mitakshara law sets thest atus o f women as bound to the f amily or asvatantra. Thus, their rights can be entailed only while theybelong to the f amily.

The Hindu Joint Family Setup has since time immemorial been criticised f or being a patriarchal setup. Thus ,even the manager of a Joint Hindu Family has not been spared f rom this patriarchal approach. Thepos ition of law qua the stat us o f women as the Karta has been inconclusive. The views seem to be rigidwhich, is a f atal f law. Court s all over India have given dif f erent views: -

Women, per courts, have been allowed as the Karta as a last resort. She may be a widow who takes over inthe absence of adult male members in the f amily. The court t hough does not delve into what co uld this

absence mean? The true t est as per the court is not who transf erred/incurred the liability, but whether thetransact ion was necessary. The court s though have rejected the notion of a widow as a coparcener for t hewant of a legal qualif ication to become a manger of a JHF. The mother then may be the Karta as t he naturalguardian of minor male members. She can also, represent the HUF f or the purpose of assessment andrecovery of income tax. After ref reshing through the authorities it was held that the mot her or any other f emale could not be the Karta of the Joint Family. Per the interpretat ion of the Court Hindu Law allows o nlya coparcener as a Karta and since females cannot be coparceners, they cannot be the Karta.

Dharmashast ras are the one and only sure guide. The Dharmashast ras give recognition to t wo o f theabove decisions . The st atus of f emale members qua debts incurred as the Karta will be binding upon t hef amily and must be paid out of the joint f amily f unds. Thus, it may be submitted that there does exist acertain sense of gender neutrality. Dharmashas tras also mandate her acts as manager by acceptingpos itive benef its as well and not merely conservative/negative acts. Thereby, the texts mandate her udgement as the Karta.


4/6

There is an inherent bo nd between property and perso nal laws in India. Before 1956, property laws quaHindus lacked coherence and diff ered on a regional basis. This can be seen in the distinct application o f the Mitakshara and the Dayabhaga Schools.

The Mitakshara School o f succession, dominant in Nort h India, was excessively patriarchal and the heirshad to be males. Under this, only lineal male descendants have a right by birth to f amilial property that t heir f ather has. Their interest is equal to that of the f ather. The coparcenary was exclusive till 2005 f or male

members. Distinct to this, the Dayabhaga system did not acknowledge inheritance rights. Though there areinstances where the patriarchal shackles are broken, f or instance under the Marumakkattayam law, inKerala, lineage is t raced thro ugh the f emale line.

Though, with t he advent o f common law in India, the lawmakers so ught to change this patriarchal bias.Women were besto wed with greater rights but st ill denied coparcenary rights. Subsequently, thro ugh st ateamendments, t his need of gender neutrality was f ulf illed.

For instance the State of Kerala abolished the concept of coparcenary according to the Kerala Joint FamilySystem (Abolition) Act, 1975. As per the st atut e the heirs (male and female) did not acquire property by birthbut ho ld tenancy rights till the propert y is part itioned. Subsequently, Andhra Pradesh (1986), Tamil Nadu

(1989), Karnataka (1994) and Maharashtra (1994) equal coparcener' rights on ancestral property by birth toboth s ons and daughters.

The 15th Law Commission via its 174th report (2000) suggested amendments to balance the discriminationagainst women. The present amended Act was modelled upon this report's recommendations. The 2005amendment gives women equal rights in the inheritance of ancest ral wealth, thus, bringing them at par withtheir male heirs. Section 6 of the Hindu Succession Act, 1956 (amended 2005) embodies t his equality. Animportant quest ion though, is s till unanswered even af ter t he amendment; whether women or daughterscan be allowed to become managers o r Karta of the joint f amily? The issue raised against them being theKarta was t heir absence f rom the joint f amily home post the amendment.

Status Of Property With Respect To Part ition

Every adult coparcener has t he right to demand a partition o f the joint Hindu f amily. The conf licting point iswhether the son can demand a partition, if the f ather has an interest with his brot her, f ather or o ther coparceners? T he position o f law qua this po int is inconclusive. In Bombay, it has been held that the son isnot entitled to a partition without the consent of his f ather, if t he f ather is joint with his f ather, brothers or ot her coparceners. However, if the joint f amily consist s only of the f ather and the so ns, the son candemand a partit ion against t he fat her and if the f amily consist s only of the grandf ather and the grandso ns,the so ns can also enf orce a partition against the grandfather.

Right Of Father

A Hindu f ather jo int with his so ns and governed by Mitakshara Law in cont radis tinction to other manager o f a Hindu undivided family or an ordinary coparcener enjoys t he larger power to impos e a part ition on hisso ns with himself as well as amongst his so ns inter se without t heir consent, whether the sons are majorsor minors.

However, the partition made must be f air and equal, and if not , then the major s ons have a right torepudiate t he partition and the minor sons have a right t o avoid that partition when they att ain majority. Incase of such an unfair partition, it is voidable and not void ab initio. However, a grandf ather cannot bring

about a partition amongst his grandsons. The father also has the superior right to bring about a partialpartition of the properties, with the rider that the partition has to be bona f ide and f air and just.

Intention To Separate


5/6

Partit ion is a severance of st atus and thus is a matt er of individual volition. The division of the joint st atusmay be brought about by any adult member of the f amily by intimating, indicating or representing to theot her members, in clear and unambiguous terms his intent ion to separate and enjoy his share in the f amilyproperty in severalty. It is immaterial in such a case whether the ot her coparceners give their assent to theseparation o r not. Further, when there is communication o f intention by a s ingle coparcener, the quest ion tobe proved on the f acts of the case is whether there was a total partition, or that the other membersdecided to remain united or to reunite

The manif estation of the intention sho uld be "declared", i.e. that it should be to t he knowledge of theperson af f ected thereby. Thus it is a necess ary condition that a member of a joint Hindu family, seeking toseparate himself f rom others will have to make known his intention to the ot her members of the f amilyf rom whom he seeks to separate.

Once a communication o f intent ion has t aken place in clear and unambiguous t erms which has resulted inthe severance of the joint f amily status, it is not open f or t he coparcener to get back to the originalpos ition by merely revoking the same. There has to be an agreement t o reunite and that a mere revocationof the intention cannot amount to an agreement to reunite. However, it has been held that a not ice thatbeen given to the o ther coparceners can be withdrawn with t heir consent.

Thus, it is submitt ed that once a notice has been issued that has come to t he knowledge of the ot her members, a severance would take place and such a notice cannot be withdrawn. It is submitted that this isalso ref lected f rom Radhakrishna v. Satya Narayan, where the court held that when in a suit f or partition,the plaint contains a clear and an unambiguous express ion o f an intent ion to separate, and summons havebeen served on t he other coparceners, division in status is ef f ected fro m the date of the f iling of the suit.

It s ometimes happens that persons make stat ements which serve their purpose or proceed uponignorance of the true pos ition, and it no t their st atements but their relation with the estate which should betaken into account while determining the issue. It is submitted that t his st atement has to be read in thecontext of a f urther st atement in the same case which said that If the document clearly shows a division

of right, its legal const ruction and ef f ect cannot be cont rolled or altered by evidence of the f utureconduct. It is submitt ed that reading these two s tat ements to gether, the conclusion that can be drawn isthat , if the document is a clear express ion of the intention to separate, then it does act as a separationand the future conduct o f the parties does not matt er, unless it can be shown that the document was never intended to act as one for partition but was a sham one f or anot her ulterior purpose.

It is also important to note the once a severance of joint st atus has t aken place, the subsequent conductof the parties is not relevant to be determined. The mere fact that s eparated coparceners chos e to liveto gether or act jointly f or purposes of business or t rade or in their dealing with propert ies, would not givethem the st atus or coparceners under the Mitakshara law. The important point here is t hat the coparcenersmust be proved to have been separated, and if so , then mere subsequent conduct unless a reunion t akesplace, would not rest ore the joint f amily status.


6/6

Order your own law essay Get a law essay quot e

Request the removal of this law essay
http://www.lawteacher.net/contact/#removehttp://www.lawteacher.net/prices/http://www.lawteacher.net/order/

lawteacher.net-anbsphindu joint family setup

Documents