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Sunday 15 June 2014

DIVISION OF THE JOINT HINDU FAMILY PROPERTY


The Hindu joint family most frequently referred in property matters, as the Hindu Undivided Family (HUF) is a unique institution of Hindus more particularly of the Mithakshara School. Ancient Hindu Law was not codified but handed over from generation to generation and the Manusmrithi is the most ancient codified law available. The origin of Hindu Law may be traced to Sruthi which consists of four Vedas and commentaries, Smrithis, customs as practiced for a long period, case laws, and later on various legislative enactments.

The Hindu Law has two major schools of thought, the Mithakshara and Dayabhaga. Mithakshara law is practiced through out India except in West Bengal and some parts of eastern India. Under this law the members of the Hindu joint family acquire interest in the family property by birth which has led to formation of joint Hindu family.

In Dayabhaga the right to family property is acquired only through survivorship. Originally the Hindu Succession Act (1956) did not recognize and grant full property rights to female members of a joint family or co-parcenary property.Various amendments were brought by the different states to the Hindu Succession Act, like in Andhra Pradesh, Tamil Nadu, Maharashtra, Kerala, and Karnataka.

The amendment which grants equal property rights to female members of co-parcenary property in Karnataka came into effect on 30/07/1994.Hindu joint families are gradually becoming obsolete. Accordingly the Kerala Government, by the amendment dated 01/12/1976, has abolished the joint Hindu family. The devolution of properties, mostly, has their origin in joint families. As such it is necessary to understand what constitutes a joint Hindu family.

Joint Hindu family
A joint Hindu family has a common male ancestor and consists of lineal male descendants, including wife or wives, widows and unmarried daughters of such common male descendants. Thus a single member cannot constitute a Hindu joint family. Joint Hindu family may be big families of different branches, but with a common male ancestor. It may also contain a single male member and his wife and daughters.Though a single male member cannot constitute a joint family, he may on marriage. Both husband and wife, together, constitute the joint family.

Co-parcenary
Co-parcenary is different from the joint Hindu family, being much narrower than the joint family. A joint family may consist of any number of generations but co-parcenary is limited to the father and three lineal descendants - the children, grand children and great grand children. These generations acquire an interest in the family property by birth.

The property owned by a joint Hindu family is a co-parcenary property.The properties inherited from the father, grandfather and great grandfather also constitutes co-parcenary property. But a property inherited from the maternal grandfather is held not to be ancestral / co-parcenary property. A distinction has to be made between co-parcenary property and self acquired property. Property may be acquired through in-heritance, partition, gift and other modes. The nature of the title depends upon how a property is acquired.

Partition
The ancient inherited property may be shared among legal heirs on partition. Such acquired property would end up as joint family property to one’s lineal descendants like the children, grand children and great grand children, but in case of other relations it would remain as a separate, self-acquired property.

Joint property
The members of a co-parcenary may jointly acquire property. The devolution of such property depends upon the intention of the purchasers. Generally, it would remain as joint family property unless contrary intention of owning it as co-owners or partners is intended and explicitly mentioned in documents.

Exchange
If a joint family property is exchanged to acquire another property, such an acquired property, such an acquired property is also called a joint family property.

Gift
Gift is a recognized mode of acquiring property and property so acquired is the separate property of the donee and does not constitute a part of the joint Hindu property.

Self acquired property
The co-parcener might have acquired properties out of his own income, which is his separate property.Such co-parceners may throw their separate, self-acquired property into the stock of the joint family property, which there for becomes the property of the joint Hindu family. But the intention must be clear. The mere intention that the members of a joint Hindu family are entitled to enjoy the benefits of the separate property may not be enough evidence to include the separate property in the joint Hindu family property.

Income from property
All incomes arising from the joint family properties are taken as joint family property income.Any property purchased from the income of joint families is also taken to be joint family property.

Separate property
Any co-parcener, member of the joint Hindu family, may acquire property out of his own self earned funds without any detriment to the joint family property and such property is a separate property, totally different from the joint family property.

Rights of co-parceners
Every co-parcenary has a right to seek partition of the joint Hindu property and assert his rights on his share.The legal heirs like sons and daughters have equal share in the property.If any of the sons has predeceased, his children jointly acquire his share of property.

Joint family funds
As already stated, a co-parcenary is different and much narrower than a joint Hindu family. Members of a joint Hindu family other than co-parceners do not have any rights in the co-parcenary property, but have rights of maintenance only. On the death of any members of a co-parcenary, the surviving generations become members of the co-parcenary.

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