4. Features of Joint Family
•Existence of common ancestor necessary for bringing joint family into
existence
•Common ancestor not necessary for continuance
•No outsider can be admitted except adoption and marriage
•It is not a juristic person
•It is unit and is represented by its Karta
•Different from composite family
•Hindu Undivided Family- the revenue statutes use this term for purpose of
assessment of tax (Surjit Lal Chhabda vs Commissioner Of Income Tax, 1976
AIR SC109)
• impact on joint family due to - married daughter, widowed daughter,
illegitimate son, marriage to a non hindu
•Incidents of Hindu joint family
• presumption of jointness- joint in food worship and estate
•Position when there is only one male- CIT v. Lakshmi Narayan (AIR 1935 Bom
412)
•Contituation of a joint family at the instance of only female members- CIT v.
Sarwan Kumar, 13 ITR 361
5. Even in the absence of an antecedent history of jointness, the appellant could
constitute a joint Hindu Family with his wife and unmarried daughter. True that
the appellant could not constitute a coparcenary with his wife and unmarried
daughter but under the Income Tax Act a Hindu undivided family, not a
coparcenary is taxable unit. A Hindu coparcenary is a much narrower body than
the joint family.
The joint family with all its incidents, is a creature of law and cannot be created
by act of parties except to the extent to which a stranger may be affiliated to
the family by adoption.
it does not take more than one male to form a joint Hindu family with females,
is well established.
Surjit Lal Chhabda vs
Commissioner Of Income Tax,
1976 AIR SC109
6. •Coparcenary is narrower institute within a joint family
•Comprising only of male members
•Consists of father and his 3 male lineal descendents
•Senior most male member is called last holder of property
Coparcenary
3rd descendent
2nd descendent
1st descendent
Last holder of
property
father
son
Grand
son
Grand
son
Great
grandson
son
Grand
son
7. Features of coparcenary
•Formation of Mitakshara Coparcenary- For copercenary to exist at least two
male members required
•Based on notion of son’s birth right in joint family property
•5th generation will not be a part of coparcenary but still a member of joint
family
•Sole surviving coparcener- can treat coparcenary property as separate
property
•Women as coparceners
•Illegitimate sons
•Ouster from coparcenary- renounce religion, marry to non hindu, given in
adoption
•Coparcenary within coparcenary
•Distinction between Joint family and Coparcenary
8. Incidents of
coparcenary
Four generation
Rule
Creation of Law
Only males
Acquisition of
interest by birth
Unity of
Possession and
Community of
interest
Fluctuating and
not a specific
Interest
Collective
Enjoyment
Doctrine of
Survivorship
Right to ask for
partition
Alienation of
Undivided
Interest
9. Rights of
Coparceners
Right by Birth
in the
Property Right of
Common
Ownership
Right of
Common
enjoyment
Right of
survivorship
Right to
Accounts
Right to
make
Acquisitions
Right to ask
for partitions
Right to
renounce his
interest
Right to
Restrain
Improper
Acts
Right of
Alienation
Right to
challenge an
Unauthorised
alienation
11. •Coparcenary comes in existence on
death of father
•Sons have no right by Birth
•No distinction between separate and
coparcenary property
•Father has absolute power of
management
•No survivorship, sucession is per stripes
•Not a creation of law but result of desire
12. Formation of
coparcenary
Commencement
of Coparcenary
Coparcenary
between two
generations
Absolute powers
of disposal
Unity of
possession and
partition
Females as
representing
coparceners
Presumption of
joint family
property
Right of
coparcener to
demand partition
Manager or Karta
Distinction between Mitakshara
and Dayabhaga Coparcenary
14. Who can be karta
•Senior most male member- presumed
•Junior male member- Noppany Invenstments v. Santokh
singh
•More than one karta- Mudit v. Ranglal
•Females as karta- CIT v. Seth Govind Ram, after 2005
15. Position of Karta
•Position is sui generis
•Custodian of family interest, head of family
•No principle agent or partners
•Stands in fiduciary but unlike a trustee not accountable
•Purely honorary and not entitled to renumeration- Jugal
kishore baldeo sahai v. CIT
•Liabilities/ responsibility
• Maintain all members
• Marriage of all unmarried daughter
• Represents the family
• Manages the property
16. Powers of Karta
•Power to Manage Family Affairs
•Right of representation
•Power to Receive and spend the Family Income
•Powers of Alienation
•Liability to account
•Power to acknowledge and contract debts
17. Means transfer of property inter vivos such as
sale, mortgage, gift
Alienation
18. • father has full power of alienation over his
separate property- rao balwant singh v. Rani
kishore
•Father Karta has two special powers-
• Gift of love and affection-
• It should be gift of love and affection
• Small portion of movable joint family
peoperty
• Immovable property- Guramma v.
Mallappa
• Alienation for the discharge of his
personal debts
Father’s Power of Alienation
19. •According to Vijnaneshwara
• Apatkale
• Kutumbarthe
• Dharmarthe
•Modern Law
• Legal necessity
• Benefit of estate
• Acts of religious and indispensible duties
Karta’s Power of Alienation
20. •Involuntary alienation
•Voluntary Alienation-
• gifts,
• sale and mortgage,
• Renunciation
• will
•Sole surviving coparcener
• Full right of alienation
• Child in womb can challenge
• Not affected by subsequent adoption of son
Coparcener’s power of alienation
22. •Right to partition
•Right to mesne profits
•Purchaser takes property subject to equities
•Right to impeach previous alienation
•Can the purchaser be allotted the alienated property in
partition
•Right to joint possession
•Equities for refund of consideration in an Unauthorised
Alienation
Alienee’s rights and remedies
23. Bringing Joint status to end
Under mitakshara school Partition means
1. severance of status or interest
2. Actual division of property
Partition
24. Subject Matter
•General Rule- entire joint family property
•Except- properties by their very nature incapable of
division
• Dwelling house
• Family shrines, temples and idols
• Staircases, wells etc
•Methods of adjustment
• Jointly or by turn
• Give to one and adjust the value
• Sell and distribute the proceeds
•Deductions and provisions
• Debts
• Maintenance
• Marriage expenses
• Performance of certain ceremonies and rites
25. Persons entitled
•Who have right to partition
• Father
• Son, grandson and great grandson
• Son born after partition
• Adopted son
• Illegitimate son
• Daughters
• Minor coparcenor
• Alienee
• Absent coparcener
Who are entitled to a share
• Father’s wife
• Mother
• Grandmother
• Coparcener’s widow
• daughter
26. How partition is effected
•Severance of joint status and interest
• Expression of intention
• Communication of intention to sever
•Mode of Partition
• Partition by suit
• By agreement
• Oral partition
• Unilateral declaration
• By arbitration
• By conduct
• Automatic severance of status
•Partial Partition
• Partial as to property
• Partial as to person
27. Division of Property by
metes and bounds
•It means physical division of joint family property
•Taking of accounts
•Rules relating to division of property
• Division between father and son
• Division between brothers
• When division takes place among branches
• Doctrine of representation
29. First Step: effect a partition between father and
sons
share to be given to:
Father
son
Father’s Wife
All will take equally
Note: Son’s will take per stripes i.e. The branch will be give the share
Father Mother
Son1 Son2
Son1’s
Son1
The share of
the Son will be
taken by the
branch
SO, the
shares are:
Father- ¼
Mother ¼
Son1’s Branch
– ¼
Son2’s
Branch- ¼
30. 2nd Step: Division Between Branches
Inside the branch look for father and sons again
and repeat the process
Son1
Son1’s
Wife
Son1’s Son1
Branch’s share- ¼
Sharers- son1 (as father),
son’1’s wife (as father’s wife),
Son1’s Son1 (as Son)
Son2
Son2’s
wife
Son2
Son1
Son2 son1
son 1
Branch’s Share – ¼
Sharers- Son2, son2’s
wife, son2’s son1’s
branch
31. Members for
Partition
Share in classic
Mitakshara Law
Share After 2005
Father ¼ 1/5
Mother ¼ 1/5
Son1 1/12 1/15
Son2 1/12 1/20
Daughter 1 0 1/5
Son1’s Son1 1/12 1/15
Son2’s Son1 1/36 1/60
Son2’s Daughter1 0 1/20
Son2’s Son1’s Son
1
1/36 1/60
Wife of Son1 1/12 1/15
Wife of Son2 1/12 1/20
Wife of Son 2’s
Son 1
1/36 1/60
32. Reopening of Partition
•Fraud
•Son in womb
•Adopted son
•Disqualified coparceners
•Son conceived and born after partition
•Absentee coparcener
•Minor coparcener
33. Important Sections
sec6 – devolution of interest in coparcenary
property
Sec8 &15- succession in case of male and female
General Provisions relating to succession
Hindu Succession
Act, 1956
34. Now daughters are coparcenares by birth like a son
The doctrine of survivorship is now been diluted
The interest of the deceased in coparcenery property shall
devolve as if the partition had taken place immediately before
his death
The share of coparcenary property so obtained by this notional
partition be his separate property and now will be divided /
devolve by testamentary (Will) or intestate succession (rules in
Sec 8 and 15).
See slide 28 for diagram- if Father dies, his share of 1/4th will
devolve by rules of sec 8 but not by survivorship
Devolution of interest in
Coparceneary Property sec 6
35. Succession in case of Male
sec 8
•1st give to relatives in class 1 of the schedule- if more than one present
from class 1 then all take simultaneously, equally and per capita as tenants
in common
•If no one from class 1 then class 2, if person from first entry present
then others are excluded if not then check next entry, if from an entry
more than one person present then all take equally
•No heir from both classes- then agnates (related exclusively through
male line), fewer degree of ascent preferred
•If no agnates then cognates (where a female intervenes in the line of
relation)
36. Succession in case of Female
sec 15
•1st- Son daughter and husband, but property inherited from father or
mother devolves to heir of father if there are no son or daughters of the
deceased
•2nd- heirs of Husband
•3rd – Mother and Father
•4th –Heirs of Father
•5th heirs of Mother
37. General Provisions relating
to succession
•Full blood preferred to half blood
•Right of a child in womb to inherit if born alive
•Where two person die in circumstances where it is uncertain who died first-
presumption that elder died first
•Preferential right of heirs to acquire interest in an immovable property or share in
business where such interest or share devolved on both or more together
•Murderer disqualified
•Convert’s decendents are disqualified
•If a person is disqualified , then property devolve as if such person died
•Disease, defect, deformity or any other ground shall not disqualify any one, except
provided
•If no heir is to be found, the property devolve on government
