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FAMILY LAW II
1. JOINT HINDU FAMILY (JHF) AND HINDU
UNDIVIDED FAMILY (HUF)
Self- acquired property earned through skills and techniques learnt by the aid of joint hindu family fund is protected for that individual and not all members of the joint hindu family can claim self- acquired property Hindu Undivided Family (HUF) is treated as a separate legal entity for the purposes of taxation. The entire income of HUF is treated as one amount earned by one separate entity
CIT v. Smt Sandhya Rani Dutla: only the female members of the family
cannot constitute a joint hindu family through agreement after death of the male member(s). For outsiders to be a part of JHF there has to be either marriage or adoption. If a man marries a Christian woman according to Special Marriage Act, his child will be treated as part of JHF but an illegitimate child of the same person will be treated as part of JHF but will only inherit his dad’s property and not JHF’s property. The child will be entitled to property inherited from both the parents
Narendranath v. Wealth Tax Commissioner: If at partition of joint family
property, A acquires his share, such property or share shall be held as property acquired by not only A but also his wife, daughters, sons, etc., as joint family property. Such property in the hands of A will have to be taxed for purposes of Wealth Tax Act as property of the joint family. A single male member can constitute a JHF by marrying, but a female member cannot start a JHF by marriage. Joint Hindu Family System No Legal Authority, not a separate legal entity Sui Generis Father is respected as an authority in JHFS. He has all decision making powers. In absence of father, eldest son enjoys the same position Jointly all co-parceners form JHF Manusmriti gave authority to eldest male member Later smritikaras opined that only one person cannot be given all rights regarding
disposal of property Smritikaras like Yagyavalkya and Brihaspati believed in joint ownership of JHF property (male members only) Neither JHF nor the co-parcenary within the JHF can be considered as separate legal entity. Yagyavalka Smriti and Bhrihaspati were of the position that if there are male members in the family then all should have a say in the division of property. Further this is supported by the Mitakshara school of thought. Dayabhaga depends primarily on the father who has main control over the Joint Hindu Family. There is a difference between Dayabhaga and Mitakshara with regard to Daya/ Partition. Dayabhaga school says that 'after the death' of the male holder/ Karta, only then shall they acquire interest in the property. Mitakshara school speaks about 'right by birth' which means that they will become joint owners by birth and they can demand property by partition. In Dayabhaga, if there is an ancestral property it is known as 'obstructed heritage ' as other coparceners have no interest in that. In Mitakshara, if there id an ancestral property then it is known as 'unobstructed heritage.' Mitakshara: right from birth, and right to demand partition Dayabhaja: Right after death of father, and right to be sole owner of property. Till 2005, only males up to the 4th generation jointly form the coparcenary. The person who leads this coparcenary is called the Karta.
ChhoteLal v. JhandeLal: when we say that joint family or coparcenary owns a certain
property we mean to say that the property belongs to a group with the incidents of joint family proprietorship/ group of coparceners. Mythological reasons are that only a son, grandson or father can be a coparcener and karma. But now even a female can be coparcener. JHF and HUF are synonyms to each other. This was said by the Supreme Court in judgements, Surjeet Singh v C.I.T., Narendra Nath v C.I.T.
SurjitLal v. CIT: Surjitlal with his wife and daughter. He had a lodge and was receiving
rent out of it. Surjitlal tried to put this rent income under his JHF name. Made a claim before income tax department that he shouldnʼt be taxed individually but as a part of JHF. Income Tax officer did not accept the claims of the assessee. Surjitlal made an appeal in front of the appellate assistant commissioner and he accepted the position taken by income tax officer. Appeal was made in front of income tax appellate tribunal made a reference before the Bombay high court over certain points of law: whether in the present case this family would be considered a JHF because itʼs just one male member and two
After this, the Hindu Gains of Learning Act was passed (1930) in which it stated that if a JHF Fund provides for specialised education, only income due to that education will not be a part of JHF. What are the rights and duties of members of JHF. A coparcener can ask for his interest in the Ancestral property by means of partition. But for that purpose, his interest should be defended and calculable. under Section 30 of Hindu Succession Act Right of pre emission that is if a coparcener wants to dispose his interest in the ancestral property then the other members of JHF will get choice of buying it on market value, first before any outsider. Rights of a coparcener Right by birth Right of common ownership Right of common enjoyment of coparcenary property Right of survivorship Right to accounts Right to make acquisitions Right to ask for Partition Right to renounce his interest Right to restrain improper acts Right of alienation (can only alienate when there is a legal necessity. Right to challenge an unauthorised alienation When there is no other way to fulfil necessities then what occurs is the Karta can alienate the property and sell it. After he sells there may be further complications that can arise if the minor attains majority and challenges the alienation that will result in further complication. Hindu Succession Act came in 1956 when daughters were not considered Karta. After right to property was passed in 1937, this gave women the partial rights to property. This limited right was called as women estate that is the interest of the coparcener husband would go to her after her husband died. but she could not sell or ask for partition. After 1956, Hindu Succession Act gave the women estate and the widow an absolute right and not a limited right. But this was only with respect to parents share and would be unequal. Further her Husbands interest which she would acquire after his death also became absolute.
After the 2005 amendment as daughter also gets to become Karta/ Coparcener it is governed by Hindu Succession Act. Right to Accounts is for any coparcener. Right to make acquisitions by the coparcenary fund after taking permission by every coparcener. A female coparceners children will also become coparceners for upto two generations. There are class I heirs and class II heirs and class I is preferred. Class I heirs also include female coparceners children after 2005 A Karta cannot be tried as a Trustee in some mismanagement. He cannot be challenged in such a case however he may have suit filed against him for both fraud or appropriation. Karta can nominate his role to another coparcener if he cannot perform is role. This will be given to the eldest coparcener. He can also take this back. Even minor can become karta under a Guardian. Powers of Karta:- With in joint family Karta has vast powers with limitations.
- Power of management:- He is the head of the family, his management powers are absolute. He may manage the family affairs and family property and business the way he likes for the benefit of estate, no one can question his management.
- Right to Income:- It is general rule that all members who works or do business out of joint family property must hand over income to Karta. It is for Karta to allot funds to the members and look after needs and requirements, so long as family remains joint, no member can ask for any specified share in the income.
- Right to representation:- He represent the family, represents the family in all matters, legal, social and religious. He can enter into any transaction on behalf of the family, his acts are binding on the entire joint family.
- Power to compromise:- He has power to compromise all disputes relating to family property or their management. He can compromise pending suits, family debts, and other transactions. However if his act is not bonafide can be challenged in a partition. 5) Power to refer a dispute to arbitration:- Karta has power to refer any dispute to arbitration and Arbitrator’s award is binding on all the members. 6) Power of acknowledgement and to contract debts:- Karta has power to acknowledge on behalf of the family any debt due to the family, also has power to pay debt or to make pack payment of debt. He has power to contract debts for the family such debts incurred in the ordinary course of business are binding on entire joint family. Even Karta when takes loan or execute promissory note for family purpose or for family business joint family is liable to pay such loan.
The Karta can alienate property for three reasons (Mitakshara):
- Apatkale - Time of distress, for instance an act of god
- Kutumbarthe - urgency, like education, health, marriage
- Dharmarthe - religious purposes - Karta to donate part of JHF to charity to attain Moksha These three terms have been modified and made specific as they had a very wide scope. After modification there are only thee headings under which alienation can take place:
- Legal necessity - still very wide. Cannot be defined or put in a narrow definition. In the case of Hanuman Prasad v. Mussmat Babooee , the privy council gave a definition in which the Karta can alienate property in legal necessity
- Benefit to the estate - reads to be defensive in nature like to maintain and manage property of greater value. In a case there were two JHF property. The Karta could not maintain the other property which was very far away, he sold that house and from that income bought a house neat. The court held it was to benefit the estate
- Indispensable duty - that is the Karta is a manager of the family and has an obligation towards JHF members, for marriage, health, and such other duties Mohori Bibee v. Dharmodas Ghose - the privity council held that minors cannot enter into contracts. The aliened that was the buyer of the property would have to beware of any coparceners interest. As a minor can challenge that as there was no interest of the coparceners as well as it was not for legal necessity. A loan for immoral purposes is known as antecedent loan/ debt and further it was not paid then there was a moral obligation on the ancestor to pay back the loan. Moral duty does not fall for loans for immoral purposes but can be recovered from the Karta’s interest in the property. That JHF property may be attacked by the court under CPC. Attacking the property is a method of execution The alienee just has to prove that he made sufficient inquiry about the JHF and to probe this, the burden of proof is on him There are limitations on the power of Karta with regards to the coparcenary which only consists of one child Under the HSA, Section 30, the coparcener whose interest is undefined can give away his interest by testamentary will. It shall be presumed to be partitioned when the will
comes into effect. The SC held that when if a coparcener was born before 2005, after the amendment, they could be considered coparceners. This case was in Prakash v. Phulwati The coparcener is said to have divided the interest the dat when the coparcener had expressed his desire to the Karta for partition. Raghavamma v. Chenchamma The guardian when goes for separation of minors property needs to present an application before the court and the state and prove that there is a danger to the interest of the minor and only after such an inquiry can partition be granted A disabled person in the coparcenary is also entitled to get his interest in the JHF property. There might be a court appointed guardian for this reason. There might be partial partition as well. There are two views. The Bombay HC held that C and D will get 1/3 each. The Madras HC held that it would be 1/9. B1 had already taken his share so after that B3 would get share of 2/9 of A1’s property. According to the Bombay view, even B3 will get 1/ of the remaining A’s property. This is what the Madras HC held in the case of Raghuvamma c. Chenchamma Persons entitled to claim partition Sons and grandsons - to their respective natural law interest After born sons are of two kinds:
- Women is pregnant during partition, then according to Hindu Law, the partition should be deferred. In case it is not deferred then the share which has gone to the father then after the birth of the child, the entire share will go to that child after the death of the father. Even in such a scenario according to Hindu Law would a mother get a share
- Illegitimate children would not get any rights to the JHF property but their parent’s property. For purposes of determining children, it was under S. 16 of HMA. Widows having limited right which changed to absolute interest by the HSA 1956. This was stated in S.14. Suppose a hindu had two wives and the mother is alive during
Once a partition has taken place, according to Brihaspati Smriti, then reunion is not possible but there are some other views as well which say reunion is possible between: father and son, brothers, uncle and nephew, son and grandson. But this can only be brought by the members of the coparcenary who were members of the JHF during partition and not someone born later During partition, if any member wants to purchase the interest of another coparcener, the copacenars are obliged to sell it to him - Right of pre emption This right is not limited to any degree or generation of JHF Hindu Succession Act Under Mitakshara School, before codification of HSA, Succession was done according to principle of consanguinity (blood relation) Under the law previous to HSA, the daughter could only inherit property while the wife had limited powers and rights. Further, succession was with regards to nearness of blood relations and type of property (JHF/private). This currently is in codified state as List I and List II in the HSA The HSA is applicable only to Hindu. - Section 2. Same as HMA. Further, a person not knowing his religion will be presumed to be a Hindu Section 2(2) - ST would be exempt from this Act unless the central government notifies through official Gazette. This is done in furtherance of the isolationist policy of the government towards Sts to protect their culture Section 3 - is a definition section. In the first definition (a) the person having blood relations on through adoption by males are related while (c) cognate is having blood relations or related by adoption through females that is “not wholly by males" Section 3 - shall be the universal definition unless otherwise required. That is if something is done according to custom then that shall prevail 3(b) - essentially overrules the “madras aliyasantana Act” and therefor the Aliyasantana law was overrules by the HSA 3(d) defines custom and usages which can overrule the law if they are not opposed to public policy and are not unreasonable. Customs might be of local, tribal, community, group or family 3(e) explains full blood: common ancestor and ancestors. Half blood - common ancestors but different wives/mothers. Uterine blood - common ancestors but different husbands/fathers 3(f) defines heir - who is a male or female who will inherit the estate if someone dies intestate 3(g) states intestate - a person who dies without a will 3(j) defines related - in context of illegitimate children who will be deemed to be related to their mother and to one another (if the mother has more than one child) Section 4 - deals with the overriding effect of the act upon the customs that previously existed 4(a) - unless there is any saving clause, then any text, rule or interpretation of Hindu Law or custom and usage will have no effect after passing of this act
4(b) - any other law in force that applies to Hindu’s shall not apply to Hindus if it is inconsistent with the provisions of this act There are certain properties which have been kept out of this act’s provisions. There are certain agreements - according to section 5. Section 5(ii) and (iii) - any property of the ex ruler shall not be governed by the HSA as per the agreement entered into with the GOI. This happened due to the principle of primogeniture which states that the eldest son would inherit the whole property (like palaces and mansions). This was to protect the properties. In 5(ii) where it states single heir then that is the eldest heir Further, if any person has married under the provision of being a non hindu then that property would be governed by Indian Succession Act (section 5(i)) Also, the Valimma Thampunan Estate would not be governed by this act as a proclamation was made by the Raja of Cochin The 2005 amendment was made in Section 6, which allowed for females to be coparcenaries. In the Act wen amended before 2005, section 6 said that this act would not apply to people governed by the Mitakshara law where a hindu male member died, his interest would be devolved as to the rule of survivorship Further, there was a proviso clause which stated that provided that there was a female relative under Class I or a male through a female relative (son of a female relative) then it would not devolve by survivorship but by interstate or testamentary succession The explanation for section 6(old) stated that (i) for the purpose of interest of a deceased hindu coparcener, that interest would be counted by assuming that the partition was asked for just before the death irrespective of the partition being asked for. This is notional or hypothetical partition. Explanation (ii) states that if a person died interstate, no person who has got his interest partitioned shall be eligible for that interest to be devolved to him. For this, there are 11 female members under schedule II. Section 8 - 13 - Rules of Hindu Succession
