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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