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Hindu Joint Family – A Jurisprudential Study

Introduction

A Hindu Joint family is a social unit and was the only social group that a family had back in ancient days. With the evolution of society into more social groups be those of communities of a certain profession or different circles of different social understandings and likes and dislikes. The evolution and formation of these communities and social circles led to the importance of family deteriorating to today where the joint family is still a very close bond but not nearly as close as in the past. No matter how much society has changed the role of the head of the family remains majorly unchanged. In a joint family today the head or the karta has the role of the legal representative of the family, manager of the family firm and also the person who has the right to give away a daughter, or adopt a son into the family. Even the role of the coparceners has not changed a lot with them having equal share in the family property and their right to receive maintenance for not only themselves but also their sons, unmarried daughters and also their wives. Hindu personal law has been codified under various Acts such as Hindu Marriage Act 1955[1], Hindu Succession Act 1956[2] and more, though there is not an Act which encompasses the entire of Hindu undivided family in itself and therefore all the rules of the act are divided under these acts.

Comparative Analysis of A Partnership And A Hindu Joint Family Firm

A partnership is governed by the Partnership Act,1932. Under section 4 of this Act, a partnership is defined as the relation between persons who have agreed to share profits of a business carried on by all or any one of them acting for all[3]. It is a judicial person and can buy its own land. A Hindu Undivided Family is also a legal person under Section 2 of the Income Tax Act, 1961[4].

The major difference between the two is that a partnership firm by the consent of two adult parties and a Hindu undivided family is made by a family and all the members of the family are the members of the firm. The role of the manager in a partnership firm is decided by the parties whereas in a Hindu undivided family it is the karta who is usually the oldest person in the family. Bombay High Court in the case of Gansavant Balsavant v. Narayan Dhond Savant[5], decided that a joint family can be regarded as a corporation whose interests are mostly centred with on the manager that is the karta and it is assumed that the manager acts towards the best interests of the family, unless the contrary is proven. The court in the same case also said that the juniors or the coparceners cannot alienate the karta even if he is a lunatic on which case it has to be proven and only with a court order under Lunacy Act, 1912. The karta can however relinquish his rights or there are other exceptional or extraordinary evidence against the karta. In a partnership firm this is not the case. In a partnership firm the partners are jointly and equally liable for the working of the firm unless mentioned otherwise. A partnership firm can remove a partner in case of lunacy by the way of reconstituting the firm, in any case any partner can propose this but only with a majority the process can go through.

In simple words, Hindu Undivided Family is a more unorganised way of conducting a business where the karta is the only one who can make important decisions with regards to the business and also all the ancestral property of the family belongs to him rather than the business which is an entity which stems from the family but works by the order of the karta whereas a partnership firm is a more organised way of conducting a business where the business is a separate entity and functions in its own self-interests decided by the partners of the firm. A partnership firm is also a more flexible and in general a better way to conduct a business as the firm can make people partners based on their expertise and the need of the firm, as compared to the HUF firm where only the family members can be parceners, therefore, expertise is limited in them.

Divisions of property in a Joint Hindu Family

The property of a Joint Hindu Family is divided into five subclasses. This division is necessary as it helps when and if the family decides to divide itself. It is during this division that the property is looked at and is divided into the members based on these divisions. Usually, it is divided equally but there are exceptions in case of property which was bought by members in their personal capacity as an individual:

1. Ancestral property: property which is inherited from the father or his fathers. In other word this is the property which has been in the family for a long time. Ancestral property can also be the family business and all the assets thereof, which may include goodwill.

2. Property acquired by all or any of the coparceners using the funds of the family: This type of property is often known as ancestral if it is not sold for a few generations or joint family property. As a result, joint family property includes income (rent, etc.), property acquired with such income, the profits of sale or mortgage of such property, and property purchased with such proceeds. When a family acquires property through a business they run, there is a presumption that the property is joint, even if the firm is not ancestral.

3. Property acquired by the family, as a product of their joint labour: This kind of property is assumed to be family property without the except if there is a contrary intention, although the presumption is rebuttable. The property gained by the members of the joint family becomes joint family or coparcenary property, regardless of whether they work in a business, profession, or vocation as was the decision in the case of Lal Bahadur v. Kanahaiya Lal[6]. In the case Bombay High Court has ruled that property gained via joint labour of all family members, even without the use of joint family finances, is deemed to be joint family property until there is evidence in the form of intent to the contrary.

4. Property acquired through the “doctrine of blending” explained in the case of Mandalal Phulchand Jain v. State of Maharashtra[7] as the conscious surrender of property and in the context of the property of the joint family it means when a member gives his own personal property to the family with the intention of abandoning all claim on the said property. Immovable property was in the name of an individual member of a joint family in P.S. Sairam v. P.S. Rama Rao Pissey[8]. The assumption was that the same belonged to a joint family; however, this cannot be extended to solo businesses run by the members in their personal capacity.

5. Any income which comes from joint family properties or from the sale of such property is also the property of the family.

Looking at Hindu Joint Family through the Courts Perspective

The courts have interpreted Hindu Joint Family and the laws surrounding it through various cases which helped explain the role of coparceners, division of property, and also succession laws of the same.

In the case of Moro Vishwanath v. Ganesh Vithal[9] important question which Was answered was that of division of family and weather a person who has been removed from the original family for more than four degrees can demand partition of the family property. The court said that until the last is not more than four degrees removed from the original family the person can rightfully ask for a partition in the family property no matter how remote he is from the family.  As to the question whether a person is within four degrees is answered in the case of Dasrath Rao v. Rama Chandra[10], where the answer was that it has to be determined on the basis of the birth date of the person requesting the partition and if he is within four degrees then the person can ask for a partition even if at the time the estate might not have gone into the hands of a member related beyond four degrees. In relation to the similar topic, it was decided in the case of Venkayamma v. Venkatramanayamma[11], where it was decided that it is the right to partition which determines the right to take by survivorship.

In the case of Indranarayan v. Roop Narayan[12]. The case said that for the existence of a joint family there need not be any property in the ownership of the family and that it is the bond and the relation between the members of the family that binds the people. According to the case Joint Family is the natural state of a Hindu society and that the contrary has to be proven by the party alleging separation. This case said that the court presumes that all the member of a Hindu Family are joint, a presumption which is stronger in the said case as it was alleging separation between father and son.

Conclusion

In conclusion, Hindu Undivided Family looks like a pretty easy concept on the surface and that is not false but like everything in law the deeper you go into it the more you learn about its intricacies and details. Similar was the case with this topic. On surface it looked like a pretty easy topic, but as I continued my research, I learned just how big and detailed it is and how much more there is to it, all of which could not be included in this project and therefore I only put those chapters and cases which I found to be of a more significance to the topic as a whole.

[1] Hindu Marriage Act, 1955

[2] Hindu Succession Act, 1956

[3] Partnership Act, Section 4

[4] Income Tax Act, 1961, Section 2 (14)

[5] Gansavant Balsavant v. Narayan Dhond Savant, 7 Bom 467 6 Indian Lunacy Act, 1912

[6] Lal Bahadur v. Kanahaiya Lal, ILR 29 AII 244

[7] Mandalal Phulchand Jain v. State of Maharashtra, (1992) 2 SCC 717

[8] P.S. Sairam v. P.S. Rama Rao Pissey , (2004) 11 SCC 320

[9] Moro Vishwanath v. Ganesh Vithal, (1873) 10 Bom HC 444

[10] Dasrath Rao v. Rama Chandra, AIR 1951 Bom 141

[11] Venkayamma v. Venkatramanayamma, 25 Mad 678 (PC

[12] Indranarayan v. Roop Narayan, (1971) 1 SCWR 764

This article has been written by Aditya Gugale, a Second-year law student studying at Maharashtra National Law University, Mumbai.

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