Joint families are a common feature which is observed in Hindu society. Thus the concept of a coparcener is also very common here. A coparcener in relation to his father is a person who has a right to offer the funeral cake to his father. So introducing such terms through Mitakshara coparcenary had sole spiritual nature but later on, by adding legal angle to it all this spiritual and religious nature was dissolved and it remained a close concept of property. So at the present times, coparcenary is a term just associated with the ancestral property.
As per the Hindu Succession Act, coparcener includes common male ancestors and their linear descendants. After the amendment of year 2005 daughter have also been added to it.
The partition is a process of joint Hindu family through which the big family which were joined earlier divides. Through the division of land, new separate families are born and nuclear family takes the place of joint families. For the process of partition, there is a requirement of at least two coparceners.
Because it is through them the jointness of families come to an end. According to Hindu Succession Act, each and every coparcener is entitled to the joint property of ancestors. They are own the property jointly.
Thus this term partition can be defined as “of the crystallization of the fluctuating interest of a coparcenary property into a specific share in the joint family estate.”
SCHOOLS OF HINDU LAW
There exist two schools of law that is responsible for governing the Hindu joint families under Indian laws. These two schools are:
(1) Dayabhaga School of Law
This term has been derived from a similar kind of text Jimutavahana. Under this school of law, the partition is carried out by choosing a specific property of coparcener or we can say there is a partition by metes and bound.
(2) Mitakshara School of Law
This term has been derived from a commentary which was written by Vijnaneswara, on the Yajnavalkya Smriti. Under this, the property division is not specific. It can be said that in this school of law, the property is just divided which is jointly owned by all. So the current system of property division is followed under this rule of law only.
Under this mitakshara school of law the property division is classified into two types-
- Joint Family Property
- Separate Property
JOINT FAMILY PROPERTY
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.
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.
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.
SELF ACQUIRED PROPERTY OR SEPARATE PROPERTY
Any property which is not a part of joint family property is a self-acquired property. This word separate here suggest that the property was once a joint family property but now has been severed and is now separate. Thus this property would be considered as a separate property in relation to the brother of the person who holds that property and still joint family property in terms of his sons. This also means that no other person has any self-interest in the property.
The property acquired by any of the following mentioned manners can be classified as a separate property:
1. The property which person acquired by his own efforts and no other family member helps him. It is not a result of joint family efforts and hence it is not a part of joint family property. When the property is in possession of a property for more than 12 years.
2. Property acquired by a person other than his father, grandfather or great grandfather would be termed as his own and not anyone’s.
3. Any property acquired by a Hindu after the partition of joint property is severed would be classified as his own property.
4. Any property which is devolved to a sole coparcener will be a self-made property as there exists no other coparcener.
5. Property which is obtained by a person as a gift from his father, or grandfather or great grandfather will also be counted as separate property.
6. Property obtained by a Hindu as a grant of government will be termed as a property which has not been borrowed from ancestors.
7. When a joint family is lost and is again gained by a person of the family without the help of any family funds will be classified as a type of property which he has earned on his own.
PROPERTY EARNED BY EDUCATION
Any earnings through the use of a member of a joint family by schooling or specialization, knowledge or certain intelligence could seem as his separate belongings. Now if the person earns using the money collectively earned by joint family members then the earning that person makes form that education would be joint or separate is a controversial issue.
In order to solve the controversy the Hindu Gains of Learning Act, 1930 was added which clarified that no gains earned by a family member by his education would be classified as a joint family property just because of the reason that the education imparted to him was a collective task. It would still be considered as a self-acquired property.
This article has been authored by Rupinder Kaur, B.A.LL.B. student at Symbiosis Law School, Noida
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