NEW BORN SON AND HIS POSITION IN JOINT HINDU FAMILY

By | September 18, 2016

Introduction to HUF

Hindu undivided family is prevalent throughout the Indian subcontinent, especially in India, consisting many generations from same ancestors living in same house. All male members should have blood relation and females should be mother, wives, unmarried daughters, or widows. The head of the family is called Karta who look after all the important aspects related to his family.

Position of new born son

Every new born son is treated as coparcener if he lies in three male lineal descendants; in its continuance the existence of the father-son relationship is not necessary. Thus, coparcenaries can consist of grandfather and grandson, of brothers of uncle and nephew and so on. The rule is that so long as one is not removed by more than four degrees from the last holder of the property, howsoever removed he may be from the original holder, one will be a coparcener. But if one is removed b more than four degrees, one will not be a coparcener. The last holder means the senior most living lineal male ancestor. If he did not come under this relation then he has to wait until death or renouncing the world of one of his ancestor.

After born coparcener

An alienation by sole surviving coparcener or by the Karta, who has no male issue of the joint family property made without any legal necessity is valid. Such alienation cannot be challenged by a son born subsequently. But if alienation is made by a father who has sons and before the entire die, another son is born to him, then even after the death of all the sons existing at the time alienation, the subsequently born son can challenge the alienation, provided the right is not barred by the limitation. The overlapping of lives gives him this right. It is necessary that at the time of conception, there must have been an unexpired right among some coparceners to challenge the alienation.

Rights of new born son as coparcener according to Mitakshara School.

A coparcener has an interest by birth in the joint family property, though until partition takes place this is an unpredictable and fluctuating interest which may be enlarged by deaths and diminished by birth in the family, every coparcener has right to be in joint possession and enjoyment of joint family property- both these are expressed by saying that there is community of interest and unity of possession. The interest that a coparcener acquires at birth is not specified or fixed interest. At no time before partition can it be predicted that he is entitled to so much share in the joint family   property. Nor can say that this property belongs to him, even if the property in his possession or he is using that property. The interest keeps on changing by any birth or death.

The nature of ownership of the Mitakshara coparceners in the joint family property is communal ownership. No individual member can say that “this is mine”. As a son takes birth in a joint family he has every right to use any property of the family nobody can deny him to use any property belong to joint family. This phenomenon is expressed by saying that the one who is born in the family has a right to birth and those who are left behind , have a right of survivorship. This is because in our society where concept of individual property dominates, the rights of the person who is born and the right of the person who survive have to be expressed in the terms of individual interests. A coparcener can get his interest in the joint family property ”individualised” this can be done by partition, but the moment the son is born to him, it again becomes a communal property. In that property son will acquire equal share.

The remarkable feature of communal ownership of the mitakshara joint family system is that one is born with property. In no other system of law, one is born with property. a person born as a son in a mitakshara family acquires an interest in the joint Hindu family property the moment he is born and if he wants to separate or individualize his interest, he can do so by filling a suit for partition. In the Hindu way of thinking, a person may be born with property yet when he dies, he leaves behind nothing. In other words if a mitakshara coparcener dies immediately on his death his interest devolves on the surviving coparceners. If a coparcener has died with some outstanding personal debts these debts cannot be enforced against his interest in the joint family property after his death though, his interest, had he partitioned before his death, would have amounted to fortune.

This is because of the principle of survivorship which lays own that immediately on the death of a coparcener his interest passes by survivorship to other coparcener. It can also be said that the interest is unpredictable and unspecified; so long as partition does not take place, no individual coparcener can claim any specific share or any specific property. Another aspect of joint family property is expressed by saying that there is unity of possession. It can also be said that all the coparceners have a right of common enjoyment and common use of property.

This may be explained by reference to two of its implications. One, the possession of one coparcener is possession of all coparceners. If one coparcener is in possession of joint family property through him, other coparceners are also deemed to be in possession. This implies that in the absence of clear proof of ouster, the coparcener in possession of the property cannot claim adverse possession. Secondly, no coparcener has a right of exclusive possession of any portion of joint family property. Thus, if a coparcener who is in possession of a portion of joint family property is ousted from it, he cannot by legal action recover the possession of the same property. He is entitled to joint possession and not exclusive possession.

Right of maintenance for coparcener

Every coparcener and every member of joint family has a right of maintenance out of the joint family property. The right of maintenance subsists throughout the life of the member so long as family remains joint. Female members and other male members who do not get a share on partition either because they have no right such as unmarried daughter or because they are disqualified from getting a share, such as idiot or lunatic coparcener, are entitled to maintenance even after partition, unmarried daughters have a right to maintenance and right to be married out of joint family funds. Other member marriage expenses are also to be defrayed out of joint family funds.

Coparcener’s right to restrain and challenge alienation.

The Mitakshara did not permit individual alienations by coparceners. The smritikars also did not seem to confer on a coparcener power of alienation over his undivided interest in the joint family property. However, the textual authority is very scanty. The law of coparcener’s power of alienation is the product of judicial legislation. The first inroad was made when it was held that a personal money decree against a coparcener could be executed against his undivided interest in the joint family property. Some high court extended this principle to voluntary alienation also.

Involuntary alienation- Involuntary alienation means the alienation of the undivided interest in execution proceedings. The Hindu sages laid great emphasis on the payment of debts. The court seized this principle of Hindu law and held that the purchaser of undivided interest at an execution sale during the life of the debtor of his separate debt acquires his interest in such property with the power of ascertaining and realizing it by partition.

The limitation of this rule is that such a decree cannot be executed against the interest of the coparcener after his death. But if his interest has been attached during his life time, it can be sold in court sale after his death.

Voluntary Alienation: Once it was accepted that the undivided interest of a coparcener can be attached and sold in execution of a money decree against him, it was the next logical step to extend the principal to voluntary alienations. What a coparcener can be forced to do, he should also be permitted to do himself and some high courts extended the principle to voluntary alienations.

Sale and mortgage

According to Bombay, Madras, and Madhya Pradesh high courts, a coparcener has power to sale, mortgage or otherwise alienate for value his undivided interest without the consent of other coparceners. In the rest of the Mitakashara jurisdiction such alienations are not permitted and a coparcener has no power to alienate his undivided interest by sale or mortgage, without the consent of the other coparceners.

Gifts

It is a settled law under the Mitakshara School including its sub school that a coparcener cannot dispose of his undivided interest in the joint family property by gift inter vivo. Such a transaction is void. However he can make a gift inter vivo with the consent of the other coparceners provided it is in favour of all coparceners.

Renunciation

A coparcener has power to renounce his interest in the joint family property. Consent of other coparceners is not necessary. Renunciation is in the nature of self-effacement. It does not affect the interest of other coparceners. It does not result in general partition. Renunciation to be valid must be of the entire interest in favour of entire body of coparceners. Renunciation extinguishes the interest of the renouncing coparcener in the joint property, and its effect is to reduce the number of persons to whom shares will be allotted at the time of division. Once coparcener renounces his interest his cannot revoke it back. Even his sons cannot claim for their share in the joint family. Renunciation does not amount to transfer of property and therefore no deed or any other formality is necessary. The expression of an intention is enough.

Sole surviving coparcener’s right of alienation

When all coparceners die leaving behind one, such a coparcener is known as sole surviving coparcener. When the joint family property passes into the hands of the sole surviving coparcener, it assumes the character of separate property, so long as he does not have a son. He has full power of alienation the property the way he likes, by sale, mortgage or gift since at the time of alienating there is no other member who has joint interest in the family property. Such alienation cannot be challenged by a subsequently born or adopted son. But if another member was in womb of his mother at the time of alienation, he does not have the power of alienation and the member on his birth can challenge such alienation. The subsequently born member may ratify it on attaining majority.

Coparcener rights to challenge alienation

An improper alienation can be challenged. It can be challenged the moment the person entitled to challenge comes to know of it and till it is not barred by limitation. Whenever alienation is challenged, the burden of proof is on the aliened to show that it was for a vali purpose. Even when sons challenge an alienation made by the father for discharging his personal debts, it is for the aliened to show that the debt was taken by the father, through if sons assert that was tainted, the burden of proof that the debt was tainted is on the sons. Sometimes a stranger can also challenge alienation such as purchaser of a coparcener’s interest may challenge an improper alienation.

Adopted son

It is settled law that a son adopted subsequent to alienation has no right to challenge alienation, Even if alienation was invalid at the date when it was made.

The joint family is one of the areas where the Mitakshara and the Dayabhaga differ forms each other fundamentally. In modern Hindu law, the joint family is the only major area where two schools of Hindu law still have significance.

Sons have no right by birth

Strictly speaking, under the dayabhaga school there is no joint family between father and son. Sons have no right by birth. Similarly the sons have no right of survivorship. Under the dayabhaga School all properties self acquired as well as coparcener, devolve by succession.

Coparcener

Under the Dayabhaga School, apparently a joint family may come into existence the same way as under the Mitakshara school. But the fact of the matter is that there is no joint family under the Dayabhaga School in the sense in which it exists under the Mitakshara School. Similarly there are no coparcenaries consisting of father, son, son’s and son’s son. A dayabhaga coparceners comes into existence for the first time on the death of the father when sons inherit their father’s property they constitute a coparcenaries. On the death of the father the succession is per stripes, i.e., branch of each of his son takes an equal share. But this does mean that the share on succession belongs to each branch. When a heir takes property by succession, his male or female descendants have no right in it and the heir takes it absolutely. When sons inherit property jointly and constitute a coparcenaries, on the death of any one of them, his heir will succeed to the property. And if son dies leaving behind a widow or daughter then she will succeed and become a coparcener. Thus under dayabhaga school a female can also be a coparcener.

Each coparcener takes a defined share

Unlike the mitakshara coparcener, a dayabhaga coparcener takes a specified and fixed share on the death of ancestor. It is not a fluctuating and uncertain interest.

Unity of possession

Although in a dayabhaga coparcener, there is no community of interest, yet there is unity of possession. We have seen earlier that when succeed to the property of their father and constitutes a coparcener, they take fixed shares. But till the distribution of property takes place no coparcener can fix his share. In other words none of them can say that such and such property will fall in his share. Each coparcener is in possession of the entire property, even if he has no actual possession, as possession one is possession of all. No one can claim any exclusive possession of property unless agreed upon by coparceners.

Joint family property and separate property of after born son

Under the Dayabhaga School, the apratibandha day or the unobstructed heritage is not recognized. All heritages under the dayabhaga law are sapratibandha daya or obstructed heritage.

On the other hand the division of property into joint family or coparcenaries property and separate or self acquired property is recognized and practically all the heads of the coparcener property and separate property under the Mitakshara School also exist under the Dayabhaga School. Thus coparcener property may consist of ancestral property, joint acquisitions property thrown into the common stock, accretions etc. In the same manner the self acquired property may consist or self exertions or gains of learning, government grants, lost property recovered, income of separate property, share on partition etc.

Coparceners power of enjoyment and alienation of his share.

As every Dayabhaga coparcener takes a defined share in the coparcenary property, he is entitled to make any use he likes of his share in the joint family property. Similarly, he has full right of alienation of his share in the coparcenary property. He may dispose it by gift, sale or mortgage. He may even lease out the property, if he is in its actual possession. He may also dispose of his share by will. Like the Mitakshara coparcener, the Dayabhaga coparcener also has a right of partition.

Mayank Shekhar
Author: Mayank Shekhar

Mayank is a student at Faculty of Law, Delhi University. Under his leadership, Legal Bites has been researching and developing resources through blogging, educational resources, competitions, and seminars.

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