Family Law II

Module 1
Evolution of Joint Family System in
India
A Hindu joint family is a traditional family structure in
Hindu society where multiple generations live together
under one roof. This family unit includes grandparents,
parents, children, uncles, aunts, and cousins, all sharing
resources, responsibilities, and domestic duties.

Key Features:
1) Patriarchal Head: The eldest male member, known as
the "Karta," is usually the head of the family. He
manages the family's affairs, finances, and property.
Evolution of Joint Family System in
India
2) Common Property: The family shares property, which is
owned collectively. This includes income, assets, and
household resources.
3) Shared Responsibilities: Household duties and
responsibilities are divided among family members,
ensuring mutual support and cooperation.
4) Economic Unit: The joint family functions as an
economic unit, pooling resources and earnings to
sustain the family's needs.
5) Cultural Values: The family upholds traditional Hindu
values, customs, and rituals, fostering a strong sense
of cultural identity and continuity.
Evolution of Joint Family System in
India
Ancient Period - Vedic Age: The concept of joint families
can be traced back to the Vedic Age, where families lived
together under one roof, sharing resources and
responsibilities. Patriarchy was dominant, and the eldest
male member (often called the "Karta") led the family.

Medieval Period - Feudal Influence: During the medieval

period, the influence of feudalism and agrarian economy
strengthened the joint family system. Large families
pooled their resources for farming and protection,
ensuring economic stability and social security.
Evolution of Joint Family System in
India
Colonial Period - British Rule: The advent of British rule
brought significant changes. The introduction of Western
education, legal reforms, and industrialization began to
impact traditional family structures. However, the joint
family system remained resilient in rural areas.

Post-Independence Period - Urbanization and

Modernization: Post-independence, rapid urbanization,
and modernization started to challenge the joint family
system. Nuclear families became more common in urban
areas due to migration for employment and educational
opportunities.
Evolution of Joint Family System in
India
Current Scenario: Today, the joint family
system coexists with nuclear families. While
urbanization and economic factors have led to
a decline in joint families, many Indians
continue to value and preserve this tradition,
especially in rural and semi-urban areas.
Joint Family Property
Joint Family Property, refers to property owned
collectively by members of a Hindu joint family. It
includes:
1. Ancestral Property: Property inherited from
ancestors, typically passed down through
generations without being divided.
2. Jointly Acquired Property: Property acquired with the
joint funds or efforts of the family members.
3. Income and Additions: Income generated from joint
family property, including any additions or
improvements made using the joint family resources.
Self-Acquired Property
This refers to property owned individually by a family
member and not shared with the joint family. It includes:
1. Property Acquired by Own Efforts: Property bought or
earned by an individual through their own efforts or
skills.
2. Gifts and Inheritances: Property received as a gift or
inherited from someone other than a direct ancestor
(e.g., from a mother's side or relatives).
3. Personal Savings: Income or savings generated from
individual efforts, which are kept separate from the
joint family resources.
Joint Family & Self-Acquired
Property
Key Differences:
1. Ownership: Joint family property is collectively
owned, while separate property is individually owned.
2. Rights: All coparceners (male members descended
from a common ancestor up to four generations)
have a right to joint family property. In contrast,
separate property is solely under the owner's control.
3. Division: Joint family property can be divided among
coparceners, whereas separate property belongs
exclusively to the individual.
Coparcenary
Coparcenary is a narrower body of persons within a
joint family and consists of Common Ancestor and
three degrees of male lineal descendants e. g.
father, son, son’s son and son’s son’s son. If upper
most ancestor dies one more degree is added and so
on. E.g.
F---S1---S2---S3---S4
If one is removed by more than 4 degrees, he will not
be considered as Coparcener. The daughter is made
a coparcener by Hindu Succession (Amendment) Act,
2005. But, widow of a son is not coparcener.
Mitakshara Coparcenary
Mitakshara and Dayabhaga are two principal schools of
Hindu law that govern the laws of inheritance and
succession in India. Both schools have their own distinct
rules regarding coparcenary, which refers to the joint
family property held by male descendants of a common
ancestor.
Mitakshara Coparcenary
1. Region: Prevalent in most parts of India, including
Northern, Western, and Southern India.
2. Principle: Based on the Mitakshara school of Hindu law,
which is a commentary on the Yajnavalkya Smriti.
Mitakshara Coparcenary
3. Formation: A coparcenary is formed by birth.
Male members (now including daughters after
the 2005 amendment to the Hindu
Succession Act) become coparceners by birth.
4. Property Rights: Coparceners have a right to
ancestral property by birth. The property is
held as joint family property.
5. Share: The share of each coparcener is not
fixed and keeps fluctuating with births and
deaths in the family.
Dayabhaga Coparcenary
1. Region: Predominantly followed in Bengal and parts of Assam.
2. Principle: Based on the Dayabhaga school of Hindu law,
which is also a commentary on the Yajnavalkya Smriti but
with different interpretations.
3. Formation: A coparcenary is formed only after the death of
the father. Sons do not acquire rights in the property by birth.
4. Property Rights: Sons acquire the property rights only upon
the death of the father, making the property separate until
then.
5. Share: Each coparcener's share is definite and
predetermined, and it does not fluctuate with births and
deaths in the family.
Women as coparceners
Hindu Succession (Amendment) Act, 2005: Before this amendment,
only male members of a Hindu joint family could be coparceners in a
Mitakshara coparcenary. The 2005 amendment changed this, granting
daughters the same rights as sons.
Equal Rights: Daughters now have equal rights to coparcenary
property by birth, just like sons. This includes the right to demand
partition, become a Karta (manager) of the family, and receive an
equal share in the ancestral property.
Retrospective Effect: The amendment applies retroactively, meaning
that daughters born before or after the amendment have the same
rights, provided the partition did not take place before 20th December
2004.
Judicial Interpretations: The Supreme Court of India has reinforced
these rights in various judgments, emphasizing that gender should not
be a barrier to inheritance rights within Hindu families.
Rights & Powers of Coparceners
Powers of Coparceners:
1. Right to Demand Partition: A coparcener has the right to demand a partition of
the joint family property and obtain their share.
2. Ownership by Birth: Coparceners have an equal interest in the ancestral property
by birth, which increases or decreases with births and deaths in the family.
3. Management and Control: Coparceners, especially the Karta (head of the family),
manage and control the joint family property, including making decisions about
its use and maintenance.
4. Alienation of Property: While coparceners generally cannot alienate (sell or
mortgage) joint family property without the consent of other coparceners, the
Karta has some discretionary powers to do so for legal necessity or benefit of the
estate.
5. Share in Income: Coparceners are entitled to a share in the income generated
from the joint family property.
Sole Surviving Coparcener
A sole surviving coparcener is a unique situation in the
context of a Hindu joint family where only one coparcener
remains. This occurs when all other coparceners have
passed away or the family has undergone partition, leaving
a single individual as the sole inheritor of the coparcenary
property.
1. Sole Ownership: The sole surviving coparcener has
complete control and ownership over the joint family
property. He can manage, sell, or otherwise dispose of
the property without needing consent from other family
members.
Sole Surviving Coparcener
2. Reconstitution of Coparcenary: If the sole surviving coparcener has a
son or a daughter, or if a son or daughter is born to them, a new
coparcenary is automatically created. The child becomes a
coparcener by birth, and the property becomes joint family property
again.
3. Powers and Rights: The sole surviving coparcener has the same
rights and powers as the Karta (manager) of a joint family, but
without the constraints of needing approval from other coparceners.
4. Succession: Upon the death of the sole surviving coparcener, the
property is inherited by the legal heirs according to the rules of
Hindu succession law, effectively distributing the property among
the heirs.
Karta: Position, Powers, and Duties
Position
The Karta is the eldest male member of a Hindu joint
family who acts as the head and manager of the
family's affairs. Traditionally, this position was
exclusive to male members, but recent legal reforms
in India allow the eldest female member to also
become the Karta under certain conditions.
Karta: Position, Powers, and Duties
Powers: -
Management of Property: The Karta has the authority to manage joint
family property, make decisions regarding its use, and conduct
transactions for the benefit of the family.
Legal Representative: He represents the family in legal matters and can
enter into contracts on behalf of the family.
Alienation of Property: The Karta has the power to alienate (sell,
mortgage, or gift) joint family property, but typically only for legal
necessity or for the benefit of the estate.
Control Over Income: He controls and allocates the income generated
from joint family property, ensuring that the needs of all family
members are met.
Karta: Position, Powers, and Duties
Duties: -
Maintenance of Family: The Karta is responsible for maintaining all family
members, providing for their basic needs, education, and overall well-being.
Managing Finances: He must keep accurate accounts of family finances,
manage expenses prudently, and ensure the financial stability of the family.
Debt Management: The Karta is responsible for paying off family debts and
managing loans.
Protection of Property: He must ensure the protection and preservation of
joint family property, making necessary investments and improvements.
Ritual and Ceremonial Duties: The Karta often performs religious rituals and
ceremonies, maintaining the family's cultural and spiritual traditions.
Father's Power of Alienation in a Hindu Joint Family

• The Father has full power of alienation over his separate

property (movable or immovable)
• The Dayabhaga Father has full power of alienation over
all the properties whether self-acquired or ancestral.
• The Mitakshara Father has no power of alienation of joint
family properties. However, he can alienate by way of –
1. Gift of love and affection
2. For the discharge of his personal debts
Case Law – Guramma v. Mallappa (AIR 1964 SC 510)
Karta’s Power of Alienation
Karta can alienate joint family property for the following purposes only –
 Legal Necessity;
 Benefit of Estate;
 Acts of indispensable duty

Karta can alienate joint family property with the consent of the
coparceners even if none of the above exceptions apply.
If all coparceners are adult and consenting then alienation is binding on
the entire joint family.
If only some coparceners consent, then it will be binding on the
interests of the consenting coparceners in Bombay & Madras. It will not
be valid in West Bengal and Uttar Pradesh.
Alienation is voidable at the option of any Coparceners, if Karta has
alienated any property without legal necessity or benefit of estate or
indispensable duties.
Alienee's Rights and Remedies
An alienee is a person to whom property is transferred or alienated. In the
context of Hindu joint family property, an alienee's rights and remedies are
governed by specific legal provisions and principles.
Rights of an Alienee:
Right to Title and Possession: The alienee obtains the title and possession of the
property transferred, provided the alienation was lawful and carried out by the
Karta or the person authorized to do so.
Right to Challenge Validity: If the alienation was made without legal necessity or
benefit of the estate, the alienee has the right to challenge its validity in court.
Right to Defend Possession: An alienee can defend their possession of the
property against any claims or suits brought by the coparceners challenging the
alienation.
Right to Benefit from the Property: The alienee has the right to benefit from the
property, including any income or profits generated from it, as long as the
alienation is valid.
Alienee's Rights and Remedies
Remedies Available to an Alienee:
Suit for Declaration: The alienee can file a suit for declaration to
confirm their title to the property if their ownership is disputed by the
coparceners.
Injunction: If there is an immediate threat to their possession or
enjoyment of the property, the alienee can seek an injunction to
prevent interference from the coparceners.
Compensation: If the alienation is later declared invalid, the alienee
can claim compensation or reimbursement for any improvements
made to the property or for any loss suffered.
Restitution: If the alienee is dispossessed unlawfully, they can seek
restitution of the property and restoration of their possession through
legal proceedings.
Partition – Mitakshara School
• Severance of Status or Interest: Partition involves the severance
of status or interest among coparceners, meaning each
coparcener gets a specific share in the joint family property.
• Actual Division of Property: This involves the physical division of
property by metes and bounds, where each coparcener receives a
distinct portion of the property.
• Doctrine of Survivorship: Under this doctrine, the share of a
deceased coparcener passes to the surviving coparceners.
• Equal Shares: When partition occurs among brothers, each
coparcener gets an equal share in the joint family property.
• Representation: If a coparcener dies leaving male heirs, those
heirs represent the deceased coparcener and inherit his share
Partition – Dayabhaga School
• Division by Metes and Bounds: Partition involves only the
division of property by metes and bounds, without severance
of status or interest.
• Fixed Shares: Shares of coparceners are fixed and do not
fluctuate with births and deaths in the family.
• No Doctrine of Survivorship: Unlike the Mitakshara School, the
Dayabhaga School does not follow the doctrine of survivorship.
• Equal Division: Similar to the Mitakshara School, partition
among brothers results in equal division of property.
• Individual Shares: Each coparcener gets a specific share in the
joint family property, which is ascertained and fixed.
Partition – Subject-Matter of Partition
Mitakshara School:
• Ancestral
Property: This includes property inherited up to four
generations of male lineage. Ancestral property is the primary
subject matter for partition.
• Jointly
Acquired Property: Any property acquired by the joint
family through joint efforts or funds can be partitioned.
• Self-Acquired Property: Generally, self-acquired property of a
coparcener is not subject to partition. However, if the coparcener
voluntarily incorporates it into the joint family property, it can
become part of the subject matter.
• Business and Assets: Joint family businesses and assets acquired
from joint family funds are included in the partition.
Partition – Subject-Matter of Partition
Dayabhaga School:
• InheritedProperty: Similar to Mitakshara, inherited
property forms the primary subject matter for partition.
• JointlyAcquired Property: Property acquired by joint
family members using joint family funds is eligible for
partition.
• Self-Acquired Property: Under Dayabhaga, property
acquired by an individual using their own resources is
not typically included in the partition unless it is
explicitly intended to be shared.
Partition – Subject-Matter of Partition
General Provisions:
• Movable and Immovable Property: Both types of property, including land,
buildings, jewelry, and cash, can be part of the partition.
• Debts and Liabilities: Joint family debts and liabilities are usually
considered during partition, ensuring an equitable distribution of both
assets and liabilities.
• Residuary Property: Any property that does not fall under specific
categories but is part of the joint family assets can also be included in the
partition.
Exclusions:
• Stridhan: Women's property or gifts given specifically to a woman, known
as Stridhan, is generally excluded from partition.
• Personal Belongings: Personal items and property solely owned by
individuals are not subject to partition.
Persons entitled to claim Partition?
Mitakshara School:
• Coparceners: All coparceners have the right to demand partition. This
traditionally included only male members, but after the Hindu
Succession (Amendment) Act, 2005, daughters are also included as
coparceners.
• Sons and Daughters: Sons and daughters have an equal right to
partition and can demand their share of the ancestral property.
• Grandsons and Great-grandsons: These male descendants also have a
right by birth to the joint family property and can claim partition.
• Son conceived but born after partition should get an equal share.
• Karta: While the Karta (usually the eldest male member) can manage
and control the property, they also have the right to initiate partition
if they choose.
Persons entitled to claim Partition?
Dayabhaga School:
• Heirs: Unlike Mitakshara, coparceners under Dayabhaga do not have rights
by birth but acquire their share upon the death of the father. Therefore,
heirs (typically sons and daughters) have the right to claim partition upon
the father's death.
• Sons and Daughters: Similar to Mitakshara, both sons and daughters can
claim partition after inheriting their share of the property.
General Provisions:
• Mother and Widow: In some circumstances, the mother and widow of a
deceased coparcener may claim partition to ensure their share of
maintenance and property.
• Heirs of a Deceased Coparcener: If a coparcener passes away, their legal
heirs (sons, daughters, widow) can claim the deceased’s share in the joint
family property through partition.
Persons entitled to get a share on partition?
Mitakshara School
• Coparceners: All coparceners have the right to demand a share on partition. This
includes:
• Sons: Sons have a right by birth to a share in the ancestral property.
• Daughters: After the Hindu Succession (Amendment) Act, 2005, daughters also have an
equal right by birth to a share in the ancestral property.
• Grandsons and Great-grandsons: They also have rights by birth to a share in the
property.
• Mother & Grand-mother: The mother is entitled to a share equal to that of a son when a
partition takes place between sons.
• Wife: The wife is entitled to be maintained out of the joint family property, and in some
cases, she may claim a share during the partition to ensure her maintenance.
• Heirs of a Deceased Coparcener: If a coparcener has died before partition, his share is
divided among his heirs, which typically includes his widow, sons, and daughters.
• Coparcener’s Widows
Persons entitled to get a share on partition?
Heirs: Under the Dayabhaga school, a coparcener's right to the
property is determined not by birth but after the death of the
father. Therefore, on partition, the heirs who inherit from the
deceased coparcener have rights to the property. This includes:
• Sons: Sons have the right to inherit their father's share in the
property.
• Daughters: Daughters also have a right to inherit their father's
share.
• Father’s wife: - She will not get a share on partition.
• Widow: The widow of a deceased coparcener is entitled to a
share in the property.
Kinds of Partition
• Partition by Metes and Bounds
This is the most common form of partition, where the joint
family property is physically divided into distinct portions.
Method: The property is measured and demarcated, and
each coparcener receives a specific portion as their share.
• Partition by Severance of Status
This type of partition involves the severance of the joint
family status, without the actual physical division of property.
Method: An unequivocal declaration by a coparcener of their
intention to separate from the joint family can effectuate this
type of partition. The property remains undivided, but the
joint status is terminated.
Kinds of Partition
• Partial Partition
Description: In a partial partition, only a part of the joint family
property is divided, while the rest remains joint.
Method: This can involve the division of either specific
properties or among specific coparceners, with the rest of the
property or family members continuing in the joint status.
• Family Arrangement
Description: This is an amicable settlement among family
members to divide the property without going through formal
legal procedures.
Method: The family members mutually agree on the division,
and the arrangement is often documented in writing, but it can
also be oral.
Modes of Partition
• Partition by Suit
• Partition by agreement
• Oral Partition
• Unilateral Declaration
• Partition by Arbitration
• Partition by conduct
• Automatic Severance of Status - Conversion
Principle of Survivorship (Mitakshara School)
• The principle of survivorship refers to the right of surviving coparceners
to inherit the share of a deceased coparcener in a joint family property.
• Upon the death of a coparcener, their share in the joint family property
automatically passes to the surviving coparceners. This means that the
property remains undivided and continues to be held jointly by the
surviving coparceners.
• No Individual Share: The deceased coparcener does not have an
individual, separable share that can be bequeathed by a will.
• Gender-Neutral: Following the Hindu Succession (Amendment) Act,
2005, daughters are also considered coparceners and can inherit by
survivorship.
• Property Remains Joint: The joint family property is not divided but the
share of the deceased is redistributed among the remaining
coparceners.
Principle of Representation (Mitakshara and
Dayabhaga Schools)
• The principle of representation allows the descendants of a
deceased coparcener to take the deceased's place and inherit their
share in the joint family property.
• Lineal Descendants: If a coparcener dies, their lineal descendants
(sons, daughters, grandchildren) represent them and inherit their
share in the joint family property.
• Equal Share: The share of the deceased coparcener is divided
equally among their lineal descendants.
• Equitable Distribution: Ensures that the property is distributed
equitably among the descendants of a deceased coparcener.
• Continuation of Joint Family: Allows the joint family to continue with
new members stepping into the shoes of the deceased coparcener.
Reopening of Partition
Reopening of partition refers to the process of revisiting a previously
conducted partition of joint family property. This is generally allowed
under certain conditions to ensure fairness and justice.
Conditions for Reopening:
• Fraud, coercion, or Misrepresentation or undue influence
• Son in Womb
• Adopted son
• Disqualified coparceners
• Son conceived and born after partition
• Absentee Coparceners
• Minor Coparceners
Reunion after Partition
Reunion after Partition
Reunion refers to the process by which previously separated family members come
together to form a joint family again and pool their properties.
Conditions for Reunion:
Intent to Reunite: The separated family members must have a clear and
unequivocal intention to reunite and share their properties as a joint family.
Reunion Agreement: A formal or informal agreement among the family members is
typically required to effectuate the reunion.
Restoration of Joint Status: The family must act in a manner that demonstrates the
restoration of joint family status, such as pooling resources and living together.
Legal Procedure:
Documentation: While a written agreement is not mandatory, it is advisable to
document the reunion agreement to avoid future disputes.
Property Management: The reunited family manages and uses the property as a
joint family, with the eldest member usually acting as the Karta.