Tag Archives: Joint Hindu Family

Self Acquired Property – Character of Joint Family Property

The law on the aspect of blending is well settled that property separate or self acquired of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the common stock with the intention of abandoning his separate claim therein; but to establish such abandonment, a clear intention to waive separate rights must be established. Clear intention to abandon separate rights in the property must be proved. Even abandonment cannot be inferred from mere allowing other family members also to use the property or utilization of income of the separate property out of generosity to support the family members. S. Subramanian v. S. Ramasamay, (2019) 6 SCC 46.

Leave a comment

Filed under Property Law, self acquired property

Joint Family Property – Presumption of

In D. S. Lakshmaiah v. L. Balasubramanyam, 2003 (95) RD 622 (SC), it was held that the legal principle, therefore, is that there is no presumption of a property being joint family property only on account of existence of a Joint Hindu Family. The one who asserts has to prove that the property is a joint family property. If, however, the person so asserting proves that there was nucleus with which the joint family property could be acquired, there would be presumption of the property being joint and the onus would shift on the person who claims it to be self acquired property to prove that he purchased the property with his own funds and not out of joint family nucleus that was available. In U.R. Virupakshappa v. Sarvamangala, 2009 (107) RD 90 (SC) held that it is well settled that the presumption in regard to existence of joint family gets weaker and weaker from descendant to descendant and such weak presumption can be rebutted by adducing of some evidence of separate possession of the property in which even the burden would shift to the plaintiff to prove that the family was a joint family. Bajrangi v. D.D.C., 2017 (136) RD 181

Leave a comment

Filed under Hindu Law, Joint Family Property

Coparcenary Property

Coparcenary property means the property which consists of ancestral property and a coparcener would mean a person who shares equally with others in inheritance in the estate of common ancestor. Coparcenary is a narrower body than the joint Hindu family and before the commencement of the Hindu Succession (Amendment) Act, 2005, only male members of the family used to acquire by birth an interest in the coparcenary property. A coparcener has no definite share in the coparcenary property but he has an undivided interest in it and one has to bear in mind that it enlarges by deaths and diminishes by births in the family. It is not static. It was further held that so long, on partition an ancestral property remains in the hand of a single person, it has to be treated as a separate property and such a person shall be entitled to dispose of the coparcenary property treating it to be his separate property but if a son is subsequently born, the alienation made before the birth cannot be questioned. But, the moment a son is born, the property becomes a coparcenary property and the son would acquire interest in that and become a coparcener.
In M. Yogendra v. Leelamma N., (2009) 15 SCC 184 it was held as under:
“It is now ell settled in view of several decisions of this Court that the property in the hands of a sole coparcener allotted to him in partition shall be his separate property for the same shall revive only when a son is born to him. It is one thing to say that the property remains a coparcenary property but it is another thing to say that it revives. The distinction between the two is absolutely clear and unambiguous. In the case of former any sale or alienation which has been done by the sole survivor coparcener shall be valid whereas in the case of a coparcener any alienation made by the karta would be valid.” Rohit Chauhan v. Surinder Singh and Others, (2013) 9 SCC 419.

Leave a comment

Filed under Coparcenary Property

Joint Hindu Family and Patriarchal Family – Property – Concept of

The concept of Joint Hindu Family and its Karta is quite ancient and an integral part of the way of living and customary rules of society among Hindus. In India and particularly among Hindus the family bonds are not only very strong but they have given right to a society who believe in a Joint Family even going to the extent of concept of village community. In the concept of property, there have been three layers, i.e. Patriarchal Family, Joint Family and Village Community. The patriarchal family is headed by father and consists of his offsprings. The Joint family may include within itself the members, related to each other, though not having common ancestors and goes beyond the family flowing from father himself. It is said that unlike England, where the concept of ownership, as a rule, is single, independent and unrestricted, and it may be joint, but the presumption is to the contrary. It may be restricted but only in special instances and under special provisions. The situation in India is totally different. Here the joint ownership is normally the rule and may be presumed to succeed until contrary is proved. If an individual holds property in severalty, in the next generation, it will relapse into a stand of joint-tenancy. A Hindu may start with nothing and may make a self acquired fortune by dint of his own labour, capacity and merits and he is the absolute owner of estate but in a couple of generations his offsprings would ramify in a joint family, like a banyan tree which also stands as a single shoot. If the property is free from hands of its acquirer, it will become fettered in the hands of his heirs.
The “patriarchal family” may be defined as a group of natural or adoptive descendants, held together by subjection to the eldest living ascendant, father, grandfather, great-grandfather. Whatever be a formal prescription of law, the head of such a group is always in practice, despotic; and he is the object of respect , if not always of affection, which is probably seated deeper than any positive institution. Manu says, “three persons, a wife, a son, and a slave, are declared by law to have in general no wealth exclusively their own; the wealth which they may earn is regularly acquired for the man to whom they belong. “ Narada says, “he is of age and independent, in case his parents be dead; during their lifetime he is dependent, even though he may have grown old.”
The “joint family” is normally a transitional form from “patriarchal family” at the death of common ancestors or head of the house. If the family chooses to continue united, the eldest son would be the natural head. The former one was head of family by natural authority, the latter can only be so by a delegated authority. He is the primus but inter pares. An undivided Hindu family thus is ordinarily joint not only in estate but in food and worship. The presumption therefore, is that members of a Hindu family are living in a state of union unless contrary is established. This presumption however varies inasmuch as it is stronger in case of real brother than in case of cousin. However, there is no presumption that a family because it is joint, possesses joint property. Under Mitakshara Law, possession of property is not a necessary requisite for constitution of a joint family, though where persons live together joint in food and worship, it is difficult to conceive of their possessing no property whatsoever, such as ordinary household articles which they would enjoy in common. Smt. Ramwati v. Dharmdas, 2013 (120) RD 842.

Leave a comment

Filed under Civil Law, Joint Hindu Family, Uncategorized