GEETA INSTITUTE OF LAW , PANIPAT

SESSION 2020-2025

SUBMITTED TO – Ms NIDHI MALIK [ ASST, PROFESSOR , GIL]

SUBMITTED BY- KARTIKEY PUROHIT [ BBA LLB SEM 6]

20766

FAMILY LAW -II ASSIGNMENT

HINDU JOINT FAMILY PROPERTY AND ITS ALIENATION

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  JOINT FAMILY PROPERTY

o What is Joint Family Property?

Whenever the head male member of a family purchases a property with the use of money
which he got by selling something which is jointly owned by every coparcener then that
purchased property becomes joint family property.

It will be classified as to be owned by the joint family. The law which helps to blend separate
property from the jointly owned property is well settled.

All that needs to be assured is that the person in the family who is acquiring that property
needs to specify that he is giving up his property voluntarily and thus it would be blended
into the joint family property.

There exist judicial pronouncements relating to the rule that wherever the jointly owned
property would be severed then if the coparcener who has once given up his self acquired
property and he later realised that he is given very less portion cannot make any claim on the
self-acquired portion.

o Doctrine of blending

This doctrine has been explained in one of the case laws “Mallesappa Bandeppa Desai and another
vs. Desai Mallappa and Others”

It was held in this case that the property when once blended with the joint family property can never
be claimed back when the joint family property is severed. And this is known as the doctrine of
blending.

There exist well-known principles of Hindu family that all the Hindu families are together in sharing
food, worship idols and estate acquire in the absence of any proof that the property is divided and
this presumption continues to exist and will continue in the future as well. The burden to prove that
there exist self-acquired properties in the current ancestral property lies on the person who acquired
that property and never claimed a right over that property.1

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[Link]
%20Family%20is%20a%20unit%20that%20is%20represented,line%20up%20to%20any%20generation.

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According to the judgement made by Bombay high court, a property which is acquired by joint
labour of member without using any of joint family funds will also be counted as joint family
property if no reverse intention is shown.

In one of the case laws “Bhagwant P. Sulakhe v. Digambar Gopal Sulakhe”, the
honourable Supreme Court gave the judgement that the nature of a joint family property never
changes even after it is severed. It will remain a joint family property as long as the family remains
joint. No member of a joint family can convert any of the joint family property into his personal
property.

 Composition

As stated in Surjit Lal Chhabda v. CIT, it consists of all male family members descended lineally up
to any generation from a common ancestor, as well as their mothers, wives, widows, and unmarried
daughters. Until she marries, a daughter remains a member of her parents' joint family. She becomes
a member of her husband's Joint Hindu family once she marries.

If a daughter's husband abandons her or she becomes a widow and returns to her father's home
permanently, she re-joins the Joint Hindu family. Her children, on the other hand, remain in their
father's Joint Hindu family and do not join the mother's father's Joint Hindu family. Even an
illegitimate offspring of a male descendent shall be a part of his Joint Hindu family, according to the
case of Gur Narain Das v. Gur Tahal Das.2

o Beginning

It is important to note that a Joint Hindu Family cannot be formed without a shared ancestor. The
presence of a common ancestor is required for its formation, but not for its continuation, i.e. the
death of the common ancestor does not result in the dissolution of the Joint Hindu Family. The
marriage, birth, or adoption of the child in the marriage removes upper family relationships and adds
lower family links. This cycle will continue as long as the species does not go extinct. The Sapinda
relationship (belonging to the same ancestors, up to three and five lines of descent from the mother's
and father's sides, respectively) or family relationship binds the members.

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 o Exit

The status of being a part of the Joint Hindu Family can be ceased in the following cases:

▪ By conversion to another religion or faith.

▪ By marriage to a non-Hindu (a person who is not Hindu as per Section 2 of the Hindu
Marriage Act, 1955 which include a Muslim, Jew, Parsi or Christian by religion).

▪ By being given in adoption to a third party by the competent parents.

▪ By marriage of a daughter.

o What If?

▪ Position when there are only female members (widow)

On the death of the sole male member, a joint Hindu family can continue to exist at the instance of
already existing female members of the family. The term 'continuation' is different from starting or
forming a joint family for the first time.

Illustration:

If A and B are brothers, C and D are wives of A and B respectively. Four of them together constitute
a Joint Hindu family.

▪ Position when there is only one male member in the family

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In such a case the Joint Hindu family can still continue to function as the requirement of a male
member is essential to start a Joint Hindu family and not for its continuance. It is not necessary to
have at least two or more male members in the family to make it a Hindu Undivided family as a
taxable entry. In the case of CIT v. Gomedalli Lakshminarayan it was held that even if the
coparcenary does not exist in a family still that family continues to be a Hindu Undivided family.3

▪ Position when there are only daughters

After the Hindu Adoption and Maintenance Act, 1956

The Act gave power and permission to even a single woman to adopt a child. As per law, the status
of an adopted child is the same as that of a child born into the family. Now, the woman could add a
male member to her father's Joint Hindu family without getting married. Therefore, an adopted child
can be maintained by a single parent [Link] the 2005 amendment in the Hindu Succession Act,
1956

The amendment to the Act gave the right to a daughter to be a coparcener and now she can not only
continue the Joint Hindu family but also constitute one with her father and brothers.

▪ Position when there are only husband and wife

Because the couple has the option of adding a male member to the family, or in other words, a
coparcener, they can form a Joint Hindu Family. There is a split in court opinion on whether a
husband and wife can establish a joint family under revenue statutes in order to qualify for the Hindu
Undivided Family tax exemption.

In the case of T. Srinivasan v. CIT, a partition took place in a Joint Hindu Family and the son took
his share. For a certain while, he filed his returns as an individual until he got married. The question

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came into consideration when his wife was pregnant. It was held that only when the son is born, he
becomes a member of the joint family.

 Alienation of Coparcenary Property

Alienation of coparcenary property is an essential element of the Hindu Law and more precisely
the Hindu Succession Act, 1956. All the transfers of the intestate property, after the death of a male
ancestor in a Hindu joint family, are controlled by the rule of inheritance. Alienation of such property
can be transferred as gifts, sale and mortgages. Neither the Karta nor any other coparcener
individually possesses any power to alienate joint family property or his interest within the joint
family property, though under Dayabhaga School, a coparcener has the right of alienation over his
interest in the joint family property.4

Alienation of separate property as any Hindu whether governed by any school has full and absolute
powers over it. Such alienation is governed by transfer of property act, 1882.

o Who may Alienate Coparcenary Property

The following persons are capable of alienating/transferring a coparcenary property and thus possess
the power in this regard:

o Father’s power of alienation

Dayabhaga father had full power of alienation over all properties whether self-acquired or ancestral
both movable and immovable. However, it is now a settled law that Mitakshara father has no greater
power over joint family movable property than over joint family immovable property. Only power of
the father that has survived is the power of making gift of love and affection. Another power that has
been created by the judicial decisions is the power of alienating joint family property for discharging
his personal debts.5

The Privy Council set at rest this argument and held that the father had the complete power of
alienation over his separate property, irrespective of being moveable or immovable. Rao Balwant
Singh v. Rani Kishori, (1898)

 Gifts of love and affection:

According to Mitakshara:

1. The father is empowered to “make a gift of love and affection” of small portion of movable
joint family property.
2. Such gifts may be made by him to his:
3. Own wife;
4. Daughter;

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Hindu Succession Act, 1956

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 5. Son in law; or
6. Any other close relation.
Guramma v/s malllappa6
A gift of immovable property to daughter made by the father after her marriage was held valid. Such
gifts are valid only if given to daughters.

 Karta’s power of alienation:

The power cannot be exercised by any member other than the Karta. The joint family property can be
alienated on three grounds:

 Legal necessity
 Benefit of estate
 Indispensable duty (religious & pious activities)
It is now a settled law that Karta can alienate the joint family property with the consent of the
coparceners even if none of above exceptional circumstances exists. Kandasami vs. Somakanda
(1912)
But an alienation without the consent of the coparceners which is not for legal necessity is held to be
void. Manohar vs. Dewan 7
The Karta’s alienation in the aforesaid circumstances also binds the interest of the minor
coparcener. Bharat vs. Nachiar (1976)
It may be taken to be a well settled law that alienation by the Karta without legal necessity or benefit
of the estate or in discharge of indispensable duties is not void but merely voidable at the instance of
any coparcener. Raghubanchmani vs. Ambika Prasad (1971) S.C. 776
 Coparcener’s power of alienation

The Mitakshara School did not permit individual alienation by coparceners. The law of coparcener’s
power of alienation is the outcome of judicial decisions. The first inroad was made when it was held
that an individual money decree against a coparcener could be executed against his undivided right
within the joint family property

We may divide this subject under two heads:

 Involuntary Alienation
This refers to the alienation of the undivided interest in the execution suits. The Hindu sages greatly
stressed upon the payment of the debts. The courts laid emphasize on this Hindu legal principle and
started its execution on personal money decrees against the joint family interest of the judgment-
debtor Coparcener. Deen Dayal vs. Jagdeep (1876),8
 Voluntary alienation
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Guramma v/s malllappa (1964) SC 510
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Manohar vs. Dewan (1985) P&H 313
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[Link]

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Once it was accepted that the undivided of a coparcener can be attached and sold in execution of
money decree against him, than the next step involves voluntary alienation.

Voluntary alienation includes:

 Gifts
 Sale and mortgage
 Renunciation
 Sole surviving coparcener

When all the coparceners dies leaving behind only one coparcener, such a coparcener is known as
sole surviving coparcener. When the joint family property passes into the hands of the sole surviving
coparcener, it acquires the character of separate property, so long as he does not have a son or
daughter (after 2005 amendment)

The sole surviving coparcener has absolute power of alienating the property the way he prefers to by
sale, mortgage or gift. But the condition is that at the time of such alienation there is no other
member who has joint interest in the family property.9

Such alienation cannot be challenged by a subsequently born child or adopted child. But in case if
another member was conceived and is in the womb of his mother at the time of alienation, then the
sole surviving coparcener does not have the right of alienation and the member on his birth can
challenge such alienation or he may ratify it on attaining majority.

After coming into force of the Hindu Succession Act, 1956, the sole surviving coparcener cannot
alienate the share of the widow. The sole surviving Coparcener cannot alienate the interest of any
female where such interest has been vested on her by virtue of Section 6 of the Hindu Succession
Act, 1956.

 Coparcener’s right to challenge alienation

When the father, the Karta, the coparcener or the sole surviving coparcener overstep their power, the
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.

When alienation is challenged the onus to prove is on the alienee to show that it was for a valid
purpose. When sons challenge alienation made by father for discharging his personal debts, it is for
the alienee to show that the debts was taken by the father, though if sons assert that the debt was
tainted (thereby admitting that their father did take the debt), the burden of proof that the debt was
tainted is on the sons.

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Modern Hindu Law by Paras Diwan.

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 o Coparcener who was in the womb at the time of alienation

A coparcener who is in the womb of his mother at the time of alienation is empowered set aside such
alienation after his birth. Under Hindu Law, a son conceived is in every aspect equal to a son born.
This also applies to an alienation made by a sole surviving coparcener.

o After born coparcener

An alienation of the joint family property made without any legal necessity by a sole coparcener or
by Karta who has no male issue is valid. Such alienation cannot be challenged by a son born
subsequently.

If alienation is made by a father who has sons and before all the sons die another son born to him,
even after the death of all the sons existing at the time of alienation, the subsequently born son can
question the alienation, provided the right is not barred by limitation. The overlapping of lives gives
him this right, it is necessary that at the time of his conception there must have existed an unexpired
right among some coparceners (even in one) to challenge the alienation.

o Adopted Son

Adopted son subsequent to alienation has no right to challenge alienation, even if the alienation was
invalid on the date when it was made.

 Alienee’s Rights & Remedies

 Right of joint possession
The purchaser of an undivided interest of a coparcener in a specific property does not acquire a right
to joint possession with the other coparcener. He is only entitled to compel partition of such property.
According to Mitakshara School in case the purchaser is a stranger and is not in possession of the
property he is not entitled to the joint possession of the property with other coparceners and his
proper remedy is partition. If such a person has obtained possession the non-alienating coparceners
are entitled to have joint possession with him.10

 Right to mesne profits

The buyer of the interest of a coparcener must be granted mesne (past) profits between the date of the
sale and the date of the suit for partition by the members who are in possession of such property.

 Right to share on partition

The share to which a buyer is entitled on partition is the share to which alienee was entitled at the
date of alienation and not at the date when the alienee seeks to reduce his interest into possession.

 Right to sue for partition after vendors death

The alienee’s right to partition is not lost due to death of the coparcener. He is entitled to claim
property from legal representatives of the coparcener.
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  Right to sue for specific performance
If before the completion of the sale the coparcener who has sold his interest dies, the purchaser is
entitled to suit for specific performance of the agreement for sale.

 Conclusion
From the above study, it is evident that coparcenary relationship in a Hindu joint family starts from
the elder most male member up to four lineal descendants. Therefore eldest male member is
considered to be the Karta of the joint family and has the power to alienate or transfer the joint
family property with the consent of all other Coparceners. However, such alienations can only be
done in circumstances involving legal necessity, the benefit of the estate, and performing
indispensable obligations such as religious or pious activities.

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