CONCEPT, NATURE AND CONSTITUTION
The institution of joint Hindu Family is very ancient. It has evolved from the ancient patriarchal family which can be described as the earliest unit of human society. In simple terms, a joint Hindu family is a group of relatives tied together by ties of kinship & marriage and descended from a common ancestor. It includes children, children’s children down the line, spouses. A joint Hindu Family is normally joint in worship/kitchen/business. Even daughter in laws/widowed daughters who has returned back to their parental side are part of a Hindu joint family. A joint family may encompass countless generations.
A joint Hindu Family is headed by a Karta, who is normally the eldest living male member of the family. Karta has some peculiar rights and obligations under traditional Hindu Law and withholds the maximum power and duty of superintendence such as how the joint family is run, who is getting what? How the members are being maintained?
He is also entitled with the power to dispose of the property in times of dire need/necessity. After 2005 amendments by which women have been given equal proprietary rights in ancestral property even women can be Karta.
A joint Hindu Family is not a corporation. It has no legal entity distinct and separate from that of the members who constitute it. It is not a juristic person either. It is a unit and in all affairs it is represented by its Karta or Head. Within its fold no outsider, except by adoption, can be admitted by agreement or otherwise. It confers a status on its members which can be acquired only by birth in the family or by marriage to a male member. (Ram Kumar v. Commissioner, Income Tax, 1953 All. 150.)
MEMBERS OF JOINT HINDU FAMILY
The following category of persons constitute a joint Hindu Family:
- Persons, lineally connected in the male line.
- Any person related by adoption
- Son born out of marriage between a male Hindu and Christian woman under the Special Marriage Act, 1954.
- The wife or widows of deceased male members and
- Maiden daughters
One of the special feature of joint Hindu Family is that it includes the illegitimate children also. They are treated to be the members of their father’s family. Sometimes, married widowed daughters also settle in the joint family and are treated as members thereof, entitled to maintenance.
In Narendera Nath 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 assesse. On the death of father the Question raised is whether the assesse 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 assesse 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.
Within the joint family there is a narrower body called the Coparcenary. This includes the eldest male member + 3 generations. For e.g.: Son – Father – Grandfather – Great Grandfather. This special group of people are called coparceners and have a definitive right in ancestral property right since the moment of their conception. Earlier only a Son/Son’s son/Son’s son’s son were coparceners – now daughters are equally coparceners after 2005. They can get their share culled out by filing a suit for partition at any time. A coparcener’s interest is not fixed it fluctuates by birth and deaths in the family.
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 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 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.
Suppose a coparcenary consisted originally of A, B, C, D, E, F, G and H, with A as the common ancestor. Suppose A dies first, then B, then C, then D, and then E, and that G has then a son I, and H has a son J and J has a son K. On E’s death the coparcenary will consist of F,G,H,I,J and K. Suppose that G,H and J die one after another , and the only survivors of the joint family are F,I and K. Are I and K coparceners with F? Yes, though I is fifth in descent from A, and K is sixth in descent from A.
The reason is that either of them can demand a partition of the family property from Here the coparcenary consists of three Collaterals, namely, F, I and K.
The essence of a coparcenary under Mitakshara law is unity of ownership. The ownership of 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:
- The lineal male descendants of a person upto the third generation, acquire on
birth ownership in the ancestral properties of such person;
- 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 as a result of such co-ownership the possession and enjoyment of the
properties is common;
- no alienation of the property is possible unless it is for necessity, without the
concurrence of the coparceners and
- the interest of a deceased member passes on his death to the survivingEvery coparcener and every other member of the joint family has a right of maintenance out of the joint family property. The right of maintenance subsists through the life of the member so long as family remains joint. No female can be a coparcener under Mitakshara law. Even wife, though she is entitled to maintenance.
“A coparcenary under the Mitakshara School is a creation of law and cannot arise by act of parties except in so far that on adoption the adopted son becomes coparcener with his adoptive father as regards ancestral properties of the latter. The incidents of coparcenership under Mitakshara law are:
- First, the lineal male descendants of a person upto third generation, acquire on birth ownership in the ancestral properties of such person;
- Secondly, that such descendants can at any time work out their rights by asking for partition;
- Thirdly, that till partition, each member has got ownership extending over the entire property conjointly with the rest;
- Fourthly, that as a result of such co-ownership the possession and enjoyment of properties is common;
- Fifthly, no alienation of the property is possible unless it be necessity, without the concurrence of the coparceners;
- Sixthly, that the interest of deceased member lapses o his death to survivors;”
The following are the characteristic features of Mitakshara Coparcenary:
- Unity of ownership: the ownership of property is not vested in a single coparcener. It is vested in the whole body of coparcenary. The coparcener acquires an interest in coparcenary property by birth, which is equal to that of his father.
- Indeterminability of shares: the interest of a coparcener in the coparcenary property is a fluctuating interest which is liable to diminish with the birth and bound in increase with the death of any coparcener in the family. So long the family remains united, no individual coparcener can predicate that he has a definite share in the property of the family.
- Community of interest: there is a community of interest in the coparcenary property. The moment a person is born in the family, he acquires an interest in the coparcenary property in the sense that he has a right of common enjoyment and common use of all the properties, because as soon as he is born as a son, he assumes the membership of the community.
- Exclusion of Females: In Mitakshara coparcenary no Female can be its members, though they are the members of joint family. Even the wife who is entitled to maintenance enjoys only the right to maintenance but she can never become coparcener. Thus she cannot demand partition.
- Devolution by survivorship: the interest of coparcener in the coparcenary property on his death does not devolve on his heirs by succession but on the other hand it passes by survivorship to the other coparceners.
- Right to maintenance: all the members of coparcenary are entitled to maintenance by birth out of joint family property. They continue to enjoy this right so long the coparcenary subsists.
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 coparcener takes a defined share in the property, and he is owner of that share. It does not fluctuate with birth and deaths in family.
Difference between Joint Hindu Family and Coparcener
- In order to constitute a Joint Hindu family the existence of any kind of property is not required whereas in Coparcenary there exists an ancestral property.
- Joint Hindu family consist of male and female members of a family whereas in Coparcenary no female can be a coparcener.
- Coparceners are members of the Joint Hindu Family whereas all the members of Joint Hindu family are not Coparceners.