A Hindu Joint Family Setup

8/22/2019 A Hindu Joint Family Setup

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A hindu joint family setup

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Introduction:

A Hindu Joint Family setup is an extended family arrangement prevalent which has an enormous

legal significance in India. Simply, a Hindu Joint Family would at best be described as, the lineal

descendants and their dependants where, the former trace their origin to one common ancestor.

The underlying essence of a joint family is the fact that it traces its origin back to one common

ancestor and with the addition and deaths of members, joint families can continue till eternity.

It is important to understand that though a single familial unit, a Joint Hindu Family does not have a

separate legal identity and is not a juristic person. Though, the only collective statutory recognition

that has been bestowed upon a Joint Hindu Family is for the purposes of taxation. Though, the

definition is highly flexible.


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The researcher, through this paper aims at throwing some light upon certain issues associated with

the Hindu Joint Family Setup; especially for a student of Family law. The focal points of the research

are drawn into the following heads:

Distinction between the Mitakshara and Dayabhaga schools of law - qua the Hindu Joint Family

Setup. An analysis into how, the two schools of law look at the familial arrangement. For e.g. In a

Hindu undivided family governed by the Mitakshara Law, no individual member of that family can

predicate that he has a definite share in the property of that family.

A brief insight into who are the Important Role Players - the Karta and the women (especially in the

context of them becoming coparceners post 2005)

Status of the Property for the Joint Family - An overview over the concept of partition of property.

The researcher also intends to throw some light into the status of the property for the purposes of

Taxation. It may be stated that for the purposes of the Income Tax Act (S. 171), a partition by metes

and bounds i.e. a physical division of property is required.

Distinction Between The Dayabhaga And Mitakshara Schools:

Important terminology:

Before embarking upon an explanation as to what is the distinction between the schools of law, it is

important to define some important terms.

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

Unity of Possession: Though, a coparcenary may exist, yet till partition takes place there cannot be a

definite share for any of the coparceners.

Doctrine of Survivorship: The concept basically states that, the property would be devolved upon the

death 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 the Karta of the coparcenary. He is the

representative of the family.


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Alienation: the voluntary and absolute transfer of title and possession of real property from one

person to another.

Effect Of Coparcenary:

There is a difference in the way a joint family comes into existence in the Mitakshara and the

Dayabhaga systems. Under the Dayabhaga School on the death of the Karta, the succession is per

stirpes; that each son 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 of 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

Another point of distinction between the Mitakshara and the Dayabhaga schools is that a

coparcener takes a fixed share once the Karta dies. In other words it's a certain share. Thus, for

example a person dies leaving behind 4 sons, then each son would have a determined 1/4th share to

the property.

Under the Mitakshara school of Hindu law, it may be said that there is a literal presumption of love

and affection in the family, i.e. there is a community interest in the family property. By community

interest one means that all the coparceners have an interest in the joint family property. Under the

Dayabhaga School though, there is a constant notion of having a fixed share of property. Though,

there may be a community interest as long a partition by metes and bounds hasn't taken place.

Doctrine Of Survivorship

This doctrine has been explained earlier. The Dayabhaga School allows for devolving of properties

only at the point of succession. Thus, there is no question of inheriting any property. It is due to the

application of this concept that there exists no coparcenary between a grandfather and his grandson

under the Dayabhaga School.


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The application of this rule is also related because classical Hindu Law recognised the concepts of

unobstructed heritage and obstructed heritage to property. By unobstructed heritage one means

that between the lineal descendants the coparcenary never ends. Thus, if one of the chain members

dies then the coparcenary shifts to the next lineal descendant. This phenomenon has been accepted

under Mitakshara School. On the other hand, the Dayabhaga School recognizes only obstructed

heritage.

There are two further differences between the two schools of law that the researcher wants to delve

upon but they would be explained in the next part of the essay owing to the fact that they involve

the role players such as the Karta.

Key Role Players In The Hindu Joint Family

The Hindu Joint Family being considered as the close knit unit as it is though has a few prominent

members while its legal status is being considered. The researcher intends to reflect the legal status

of two prominent members: the Karta, the status of a female as a coparcener post the 2005

amendment.

The Karta:

In a Joint Hindu Family, the Karta being the representative is responsible for the family. He is

supposed to oversee the income and assets of the joint property. He is accountable to all other

family members for the use of their shares of all sums which he spent. The Karta's powers and

liabilities and his power of alienation are similar in both the Dayabhaga and the Mitakshara Schools.

The difference that draws a contradistinction between the two is that the latter must be in a

position to render full accounts at all points of time. On the other hand the Karta under the

Dayabhaga School should render accounts only at the time of partition.

As per Hindu law's convention, the senior most male member is generally the Karta of the joint

family. The Andhra Pradesh High Court has stated that the Karta does not owe his position to

agreement or consent of other coparceners. His status has been a part of Hindu Culture for long. As

long as he is alive, irrespective of his age, health or strength, he continues to be Karta.

A conflict arises when in the presence of a senior male member can a junior male member be the

Karta? The position of law decided on this is that if all the coparceners agree, then a junior male


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member can be a Karta. Though, this is contingent upon the whims and fancies of the coparceners

who may withdraw their consent at any time.

Can A Female Member Be The Karta?

The Mitakshara School sets a position of law, that on marriage the wife entails ownership rights to

her husband's separate and joint family property. Similarly, a daughter garners this right at birth. The

contingency to this being that there is a distinction between males and females. Mitakshara law sets

the status of women as bound to the family or asvatantra. Thus, their rights can be entailed only

while they belong to the family.

The Hindu Joint Family Setup has since time immemorial been criticised for being a patriarchal

setup. Thus, even the manager of a Joint Hindu Family has not been spared from this patriarchal

approach. The position of law qua the status of women as the Karta has been inconclusive. The

views seem to be rigid which, is a fatal flaw. Courts all over India have given different views: -

Women, per courts, have been allowed as the Karta as a last resort. She may be a widow who takes

over in the absence of adult male members in the family. The court though does not delve into what

could this absence mean? The true test as per the court is not who transferred/incurred the liability,

but whether the transaction was necessary. The courts though have rejected the notion of a widow

as a coparcener for the want of a legal qualification to become a manger of a JHF. The mother then

may be the Karta as the natural guardian of minor male members. She can also, represent the HUF

for the purpose of assessment and recovery of income tax. After refreshing through the authorities it

was held that the mother or any other female could not be the Karta of the Joint Family. Per the

interpretation of the Court Hindu Law allows only a coparcener as a Karta and since females cannot

be coparceners, they cannot be the Karta.

Dharmashastras are the one and only sure guide. The Dharmashastras give recognition to two of theabove decisions. The status of female members qua debts incurred as the Karta will be binding upon

the family and must be paid out of the joint family funds. Thus, it may be submitted that there does

exist a certain sense of gender neutrality. Dharmashastras also mandate her acts as manager by

accepting positive benefits as well and not merely conservative/negative acts. Thereby, the texts

mandate her judgement as the Karta.

Status Of Female Coparcenary (Pre And Post Amendment)


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There is an inherent bond between property and personal laws in India. Before 1956, property laws

qua Hindus lacked coherence and differed on a regional basis. This can be seen in the distinct

application of the Mitakshara and the Dayabhaga Schools.

The Mitakshara School of succession, dominant in North India, was excessively patriarchal and the

heirs had to be males. Under this, only lineal male descendants have a right by birth to familial

property that their father has. Their interest is equal to that of the father. The coparcenary was

exclusive till 2005 for male members. Distinct to this, the Dayabhaga system did not acknowledge

inheritance rights. Though there are instances where the patriarchal shackles are broken, for

instance under the Marumakkattayam law, in Kerala, lineage is traced through the female line.

Though, with the advent of common law in India, the lawmakers sought to change this patriarchal

bias. Women were bestowed with greater rights but still denied coparcenary rights. Subsequently,

through state amendments, this need of gender neutrality was fulfilled.

For instance the State of Kerala abolished the concept of coparcenary according to the Kerala Joint

Family System (Abolition) Act, 1975. As per the statute the heirs (male and female) did not acquire

property by birth but hold tenancy rights till the property is partitioned. Subsequently, Andhra

Pradesh (1986), Tamil Nadu (1989), Karnataka (1994) and Maharashtra (1994) equal coparcener'

rights on ancestral property by birth to both sons and daughters.

The 15th Law Commission via its 174th report (2000) suggested amendments to balance the

discrimination against women. The present amended Act was modelled upon this report's

recommendations. The 2005 amendment gives women equal rights in the inheritance of ancestral

wealth, thus, bringing them at par with their male heirs. Section 6 of the Hindu Succession Act, 1956

(amended 2005) embodies this equality. An important question though, is still unanswered even

after the amendment; whether women or daughters can be allowed to become managers or Karta

of the joint family? The issue raised against them being the Karta was their absence from the joint

family home post the amendment.

Status Of Property With Respect To Partition

Every adult coparcener has the right to demand a partition of the joint Hindu family. The conflicting

point is whether the son can demand a partition, if the father has an interest with his brother, father

or other coparceners? The position of law qua this point is inconclusive. In Bombay, it has been held

that the son is not entitled to a partition without the consent of his father, if the father is joint withhis father, brothers or other coparceners. However, if the joint family consists only of the father and


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the sons, the son can demand a partition against the father and if the family consists only of the

grandfather and the grandsons, the sons can also enforce a partition against the grandfather.

Right Of Father

A Hindu father joint with his sons and governed by Mitakshara Law in contradistinction to other

manager of a Hindu undivided family or an ordinary coparcener enjoys the larger power to impose a

partition on his sons with himself as well as amongst his sons inter se without their consent, whether

the sons are majors or minors.

However, the partition made must be fair and equal, and if not, then the major sons have a right torepudiate the partition and the minor sons have a right to avoid that partition when they attain

majority. In case of such an unfair partition, it is voidable and not void ab initio. However, a

grandfather cannot bring about a partition amongst his grandsons. The father also has the superior

right to bring about a partial partition of the properties, with the rider that the partition has to be

bona fide and fair and just.

Intention To Separate

Partition is a severance of status and thus is a matter of individual volition. The division of the joint

status may be brought about by any adult member of the family by intimating, indicating or

representing to the other members, in clear and unambiguous terms his intention to separate and

enjoy his share in the family property in severalty. It is immaterial in such a case whether the other

coparceners give their assent to the separation or not. Further, when there is communication of

intention by a single coparcener, the question to be proved on the facts of the case is whether there

was a total partition, or that the other members decided to remain united or to reunite

The manifestation of the intention should be "declared", i.e. that it should be to the knowledge of

the person affected thereby. Thus it is a necessary condition that a member of a joint Hindu family,

seeking to separate himself from others will have to make known his intention to the other

members of the family from whom he seeks to separate.

Once a communication of intention has taken place in clear and unambiguous terms which has

resulted in the severance of the joint family status, it is not open for the coparcener to get back to

the original position by merely revoking the same. There has to be an agreement to reunite and that


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a mere revocation of the intention cannot amount to an agreement to reunite. However, it has been

held that a notice that been given to the other coparceners can be withdrawn with their consent.

Thus, it is submitted that once a notice has been issued that has come to the knowledge of the othermembers, a severance would take place and such a notice cannot be withdrawn. It is submitted that

this is also reflected from Radhakrishna v. Satya Narayan, where the court held that when in a suit

for partition, the plaint contains a clear and an unambiguous expression of an intention to separate,

and summons have been served on the other coparceners, division in status is effected from the

date of the filing of the suit.

It sometimes happens that persons make statements which serve their purpose or proceed upon

ignorance of the true position, and it not their statements but their relation with the estate which

should be taken into account while determining the issue. It is submitted that this statement has to

be read in the context of a further statement in the same case which said that If the document

clearly shows a division of right, its legal construction and effect cannot be controlled or altered by

evidence of the future conduct. It is submitted that reading these two statements together, the

conclusion that can be drawn is that, if the document is a clear expression of the intention to

separate, then it does act as a separation and the future conduct of the parties does not matter,

unless it can be shown that the document was never intended to act as one for partition but was a

sham one for another ulterior purpose.

It is also important to note the once a severance of joint status has taken place, the subsequent

conduct of the parties is not relevant to be determined. The mere fact that separated coparceners

chose to live together or act jointly for purposes of business or trade or in their dealing with

properties, would not give them the status or coparceners under the Mitakshara law. The important

point here is that the coparceners must be proved to have been separated, and if so, then mere

subsequent conduct unless a reunion takes place, would not restore the joint family status.

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Concept of Karta in Hindu Joint Family [1]


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In a Hindu Joint Family, the Karta or Manager occupies a pivotal and unique place in that there is no

comparable office or institution in any other system in the world. His office is independent of any

other and hence his position is termed as sui generis.

Who can be a Karta?

Senior-most Male Member:

The senior-most male member of the family is entitled to this position and it is his right. His right is

not subject to any agreement or any other understanding between the coparceners. He may be

aged, infirm or ailing, yet if he is still alive, then he shall be entitled to Kartaship.

But once the Karta dies, the position passes to the next senior-most male member; it may be the

uncle, or brother or son.

Junior Male Member:

By agreement between the coparceners, any junior male member can be made a by agreement

between the coparceners, any junior male member can be made a Karta. In this case, withdrawal of

the coparceners consent is allowed at any point of time.

Female Members as Karta:

Regarding the issue of female members of a family assuming Kartaship, there has been considerableamount of discussion in the Supreme Court of India as well as the High Courts. The Nagpur High

court once held that though a mother is not a coparcener, she can be the Karta in absence of male

members. But the Supreme Court reversed the Nagpur High Courts findings in another judgment

and declared that no female member can assume Kartaship whatsoever.

To put an end to this controversy, few States namely, Kerala, Andhra Pradesh & Karnataka have

amended their succession laws so that equal rights are provided to females as compared to the

males in the family.


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Characteristics of a Karta:

Kartas position is sui generis. As had been explained earlier, his position/ office is independent and

there is no comparable office in any system in the world.

He has unlimited powers and even though he acts on behalf of other members, he is not a partner or

agent.

He manages all the affairs of the family and has widespread powers.

Ordinarily he is accountable to no one. The only exception to this rule is if charges of

misappropriation, fraud or conversion are levelled against him.

He is not bound to save, economise or invest. That is to say that he need not invest in land if the land

prices are about to shoot up, and hence miss out on opportunities etc. He has the power to use the

resources as he wishes, unless the above mentioned charges are levelled against him.

He is not bound to pay income of joint family in any fixed proportion to other members. This means

that the Karta need not divide the income generated from the joint family property equally among

the family members. He can discriminate one member from another and is not bound to treat

everyone impartially. Only responsibility is that he has to pay everyone something so that they can

avail themselves of the basic necessities such as food, clothing, shelter, education etc.

Apart from all the unlimited powers that are bestowed upon the Karta, he also has liabilities thrust

on him.

Kartas Liabilities:

Karta has to maintain all the members of the joint family properly. If there is any shortfall in his

maintenance, then any of the members can sue for maintenance.


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He is responsible for marriage of all the unmarried members in the family. Special emphasis is laid

with respect to daughters in this case.

In case of any partition suit, the Karta has to prepare accounts.

He has to pay taxes on behalf of the family.

Karta represents the family in all matters including legal, religious and social matters.

Powers of Karta:

The powers of a Karta are divided into two parts:

Power of Alienation:

The most important case with respect to Kartas power of alienation is Rani v. Shanta*2+. The Karta

has very limited powers with respect to alienation of the joint family property. The Karta can

alienate the joint family property only with the consent of the coparceners. Alienation can be done

only for three purposes:

Legal Necessity: The term legal necessity has not been expressly defined in any law or judgment. It

is supposed to include all those things which are deemed necessary for the members of the family.

Necessity is to be understood, not in the sense of what is absolutely indispensible, but what would

be regarded as proper and reasonable. If it is shown that familys need was for a particular thing, andif property was alienated for the satisfaction of that particular need, then it is enough proof that

there was a legal necessity.

A few illustrative cases are:

a) Food, shelter and clothing.

b) Marriage (second marriages are not considered a legal necessity).


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c) Medical care.

d) Defence of person accused of a crime (exception to this rule is murder of a family member).

e) Payments of debts, taxes etc.

f) Performance of ceremonies (like marriage, grihapravesham).

g) Rent etc.

Benefit of Estate: Karta, as a prudent manager, can do all those things which are in furtherance of

the familys advancement, to prevent probable losses, provided his acts are not purely of speculative

or visionary nature. The last clause means that the property cannot be converted into money just

because the property is not yielding enough income.

Indispensable Duties: This term implies the performance of those acts which are religious, pious or

charitable. Examples of indispensable duties are marriages, grihapravesham etc. In this case there is

a requirement to differentiate between alienation made for indispensable duties and gifts for

charitable purposes. The difference lies in the fact that in the former case while discharging

indispensable duties, the Karta has unlimited powers in the sense that he can alienate the entire

property for that purpose. But in the case of gifts for charitable purposes, only a small portion can be

alienated.

Note: If the alienation is not made for any of the three purposes, then the alienation is not void but

voidable at the instance of any coparcener.

Other Powers:

These powers of the Karta are almost absolute. There are 9 powers in all and each of them has beendealt with in brief below:

Powers of Management: It is an absolute power. The Karta may mismanage or may discriminate

between members and cannot be questioned on such aspects. But the Karta cannot deny

maintenance and occupation of property to any member altogether. The check on his powers in this

case is the power of partition vested in the coparcener.


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Right to Income: All incomes of the joint family property should be brought to the Karta and it is for

the Karta to allot funds to members and to look after their needs and requirements.

Right to Representation: The Karta represents the family in all matters legal, social and religious. Hisacts are binding on the family.

Power of compromise: The Karta has the power to compromise in all disputes relating to the family

property or management. His acts are binding on the members of the family; but in case of a minor,

it has to be approved by the court under O.32, Rule 7, CPC. The compromise made by the Karta can

be challenged in court by any of the coparceners only on the ground of malafide.

Power to refer a dispute to Arbitration: The Karta has the power to refer any dispute with respect to

family property or management to an arbitration council and the decision is binding on the family.

Power of Acknowledgement: The Karta can acknowledge any debt due to the family or pay interest

on a debt or make part or full payment of principal etc. But the Karta has no power to acknowledge

a time-barred debt.

Power to Contract Debts: The Karta has implied authority to contract debts and pledge the credit

and property of the family. His decision is binding on the members of the joint family.

Loan on Promissory Note: When the Karta takes a loan for family purposes and executes a

promissory note, then the other members may be sued as well even if they are not parties to the

note. But the members are liable to the extent of their shares whereas the Karta is personally liable

on the note.

Power to enter into Contracts: The Karta has the power to enter into contracts which are binding on

the family.

Burden of Proof:

If the alienation is challenged in court of law, then it is for the alienee to show that there was a legal

necessity. In effect, he has to show two aspects:


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a) Proof of actual necessity.

b) Proof that he made a bonafide enquiries about the existence of legal necessity and that he did all

that reasonable to satisfy himself of the existence of the necessity.

Thus this presentation has discussed all the important aspects with respect to Karta in a joint Hindu

family, viz., who can be a Karta, the characteristics, liabilities, powers and finally the burden of proof

in case of a challenge.


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A Hindu Joint Family Setup

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