Chapter 4

Joint property and management

Introduction

Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon any one asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been accrued, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property.279

To render the property joint the plaintiff must prove that the family was possessed of some property with the income of which the property could have been acquired or from which the presumption could be drawn that all the property possessed by the family is joint family property or that it was purchased with joint family funds, such as the proceeds of sale of ancestral property or by joint labour. None of these alternatives is a matter of legal presumption. It can only be brought to the cognisance of a Court in the same way as any other fact, namely, by evidence.280

Self acquired property of father can be impressed with the character of joint family property with his son as other coparcener. It is a matter of intention which is not subject to any formalities to be performed to bring about the character of joint family property. Inference of joint family property can be drawn only from the conduct of the parties.281

Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established that the family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property.282

Law presumes jointness. The defendant who denies the same has to dislodge the presumption. Separate living in the same village in different houses, joint record with specification of shares in the record of rights and separate payment of house taxes in a given case may not be compatible with a theory of partition by metes and bounds and may lead to the conclusion that the parties are living and cultivating lands separately for convenience.283

The state of every Hindu family is presumed to be joint, joint in food, worship and estate, but the strength of the presumption necessarily varies in each case. It has been laid down that the presumption of union is stronger in the case of brothers than in the case of cousins, and the farther you go from the founder of the family, the presumption becomes weaker and weaker.284 The presumption will be stronger in the case of a father and his sons. It is for the party who pleads that a member of a family has separated himself from the family to prove it satisfactorily.285

When the joint family having sufficient nucleus to acquire the property it was held that the property in the name of any member should be presumed to have been acquired from the funds of joint family unless proved otherwise by evidence.286

Where coparceners were dealing with properties on the basis that they had separated, the presumption of jointness cannot be raised.287

The properties jointly acquired by the members of the joint family without the aid of joint family nucleus are presumed to be the joint family properties. As an extension of this principle, when the members of the joint family acquire properties by their joint labour such properties, in absence of clear indication to the contrary, would also be presumed to be owned by them as joint family properties and their male issues would necessarily acquired a right by birth in such properties.288

The presumption that cousins formed a joint Hindu family would be a weak one and the presumption that the status of the family has continued to be joint would be still weaker. In order to displace such a weak presumption even slender evidence would suffice.289

The property acquired after severance from joint family but also with the help of joint family funds has to be treated as self acquired property.290

Under Hindu Law, there is presumption of jointness, but in absence of any document of settlement, the Court has to draw a presumption that the properties in question were ancestral properties especially when it is clear from the deposition of the witnesses examined on behalf of the defendants that the plaintiff has also been in possession of the land and the rent was being paid jointly.291

Separate living by itself is not sufficient to infer partition even if undivided members are carrying on separate business, that does not amount to partition.292

Burden of proof

There is no presumption that a Hindu family merely because it is joint, possesses any joint property. The burden of proving that any particular property is joint family property, is, therefore, in the first instance upon the person who claims it as coparcenery property. But if the possession of a nucleus of the joint family property is either admitted or proved, any acquisition made by a member of the joint family is presumed to be joint family property. This is however subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired. It is only after the possession of an adequate nucleus is shown, that the onus shifts on to the person who claims the property as self-acquisition to affirmatively make out that the property was acquired without any aid from the family estate.293

Where though a document is standing in the name of one person, another party comes and claims the property to be joint family property, the burden lies first on him to prove that the two were joint at the time of the acquisition and secondly that the joint family had a sufficient nucleus from which the property could have been acquired. If this burden is discharged by the party who claims the property to be joint the burden then shifts to the other side to show that really the property was acquired for himself and with his own funds.294

It would be a question of fact to be determined in each case upon the evidence relating to the intention of the parties whether there was a separation amongst the other co-parcerners or that they remained united. The burden would undoubtedly lie on the party who asserts the existence of a particular state of things on the basis of which he claims relief.295

Where the properties acquired while the family was joint and that whole of the ancestral or joint family property should be regarded as joint family property and that the burden of proof that it was self-acquired property should be on that member.296

The person who asserts and alleges any property to be Hindu Joint Family property has to prove the same. In order to be successful in this he should either prove that the property was inherited from the common ancestor and as such being ancestral property, it should be presumed to be a joint family property. In the alternative, satisfactory evidence has to be led to warrant a conclusion that the property was acquired with the aid of joint family nucleus which, in its turn, has to satisfy a further test that such a nucleus was sufficient to acquire the property in question. In order to come to a conclusion from the joint family nucleus, the fat that Karta or a member of the joint family acquiring the same had other source of income also from which the property in question was in fact acquired is also relevant and has a material bearing for determination of the controversy.297

Blending

Property which was originally self-acquired may become joint property if it has been voluntarily thrown by the coparcener into joint stock with the intention of abandoning all separate claims upon it. But the question whether the coparcener has done so or not is entirely a question of fact to be decided in the light of all the circumstances of the case. It must be established that there was a clear intention on the part of the coparcener to waive his separate rights and such an intention will not be inferred merely from acts which may have been done from kindness or affection.298 Where a member of a joint Hindu family blends his self acquired property with property of the joint family, either by bringing his self acquired property into a joint family account, or by bringing joint family property into his separate account, the effect is that all the property so blended becomes a joint family property.299

If a joint Hindu family separates, the family or any members of it may agree to reunite as a joint Hindu family, but such a reuniting is for obvious reasons, which would apply in many cases under the law of the Mitakshara, of very rare occurrence, and when it happens it must be strictly proved as any other disputed fact is proved.300

The doctrine of throwing into common stock inevitably postulates that the owner of a separate property is a coparcener who has an interest in the coparcenary property and desires to blend his separate property with the coparcenary property. The existence of a coparcenary is absolutely necessary before a coparcener can throw into the common stock his self-acquired properties. The separate property of a member of a joint Hindu family may be impressed with the character of join family property if it is voluntarily thrown by him into the common stock with the intention of abandoning his separate claim therein. The separate property of a Hindu ceases to be a separate property and acquires the characteristic of a joint family or ancestral property not by any physical mixing with his joint family or his ancestral property but by his own volition and intention by his waiving and surrendering his separate rights in it as separate property. The act by which the coparcener throws his separate property to the common stock is a unilateral act. There is no question of either the family rejecting or accepting it. By his individual volition he renounces his individual right in that property and treat his self-acquired property as that of the joint family property, the property assumes the character of joint family property. The doctrine of throwing into the common stock is a doctrine peculiar to the Mitakshara School of Hindu law. Whan a coparcener throws his separate property into the common stock, he makes no gift under Chapter VII of the Transfer of Property Act.301

To constitute a reunion there must be an intention of the parties to reunite in estate and interest. It is implicit in the concept of a reunion that there shall be an agreement between the parties to reunite in estate with an intention to revert to their former status of members of a joint Hindu family. Such an agreement need not be express, but may be implied from the conduct of the parties alleged to have reunited. But the conduct must be of such an incontrovertible character that an agreement of reunion must be necessarily implied therefrom. As the burden is heavy on a party asserting reunion, ambiguous pieces of conduct equally consistent with a reunion or ordinary joint enjoyment cannot sustain a plea of reunion.302

The theory of blending under the Hindu Law involves the process of a wider sharing of one's own properties by permitting the members of one's joint family the privilege of common ownership and common enjoyment of such properties. But while introducing new sharers in one's exclusive property, one does not by the process of blending efface oneself by renouncing one's own interest in favour of others. To blend is to share along with others and not to surrender to the exclusion of oneself. If a Hindu female, who is a member of as undivided family, impresses her absolute, exclusive property with the character of joint family property, she creates new claimants to her property to the exclusion of herself because not being a coparcener, she has no right to demand a share in the joint family property by asking for a partition. She has no right of survivorship and is entitled only to be maintained out of the joint family property. Her right to demand a share in the joint family property is contingent, inter alia, on a partition taking place between her husband and his sons. A Hindu female therefore is not a coparcener. Even the right to reunite is limited under the Hindu Law to males. It does not therefore militate against the fundamental notions governing a Hindu joint family that a female member of the joint family cannot blend her separate property, even if she is an absolute owner thereof, with the joint family property.303

Property separate or self-acquired of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the common stock with the intention of abandoning his separate claim therein: but to establish such abandonment a clear intention to waive separate rights must be established. From the mere fact that other members of the family were allowed to use the property jointly with himself, or that the income of the separate property was utilised out of generosity to support persons whom the holder was not bound to support, or from the failure to maintain separate accounts, abandonment cannot be inferred, for an act of generosity of kindness will not ordinarily be regarded as an admission of a legal obligation.304

Under Hindu law it is open to a limited owner like a Hindu female succeeding to her mother's estate as in Madras or a Hindu widow succeeding to her husband's estate, to efface herself and accelerate the reversion by surrender; but, as is well known, surrender has to be effected according to the rules recognised in that behalf. A Hindu female owning a limited estate cannot circumvent the rules of surrender and allow the members of her husband's family to treat her limited estate as part of the joint property belonging to the said family. On first principles such a result would be inconsistent with the basic notion of blending and the basic character of a limited owner's title to the property held by her.305

Upon unequivocal expression of intent to blend individual property into joint family property it can be treated as joint family property.306

Where properties in the name of individual member treated as joint family property were transferred by Karta in partition and the individual member did not appear in witness-box to assert his title, it was held that Adverse inference is to be drawn that property is joint property.307

There must be sufficient income to infer the possibility of blending of property. In on such case plea was negatived and it was observed 'it is the case of the defendant that there is no joint family properties at all. It is not the case of plaintiff that there are certain properties admitted to be the joint family properties and the suit property is an accretion or acquisition from the income of the joint family properties. …… The burden is therefore on the plaintiff to establish that the suit property is the joint family property. But, in view of the fact that it is not in dispute that the father was only a cooly, that there was no ancestral property and there was no surplus income for the father and in view of the fact that the first defendant is employed in the Corporation, it cannot be stated that the plaintiff has established that it is a joint family property. There was no blending of the properties purchased by one of the members of the joint family along with the property of the joint family.308

Property which was originally the separate or self-acquired property of a member of the joint family may become joint family property, if it has been voluntarily thrown by him into the common stock with the intention of abandoning all separate claims upon it, a clear intention to waive his separate rights must be established and it will not be inferred from the mere fact of his allowing the other members of the family to use it co-jointly with himself nor from the fact that the income of the separate property was used to support a son nor from the mere failure of a member to keep separate accounts of his earnings, so also facts of generosity or kindness should not be construed as admission of legal obligations separate property thrown into the common stock is subject to all the incidents of the joint family property.309

Mere withdrawal of the unilateral declaration of the intention to separate which already had resulted in the division in status cannot amount to an agreement to reunite. It should also be stated that the question whether there was a subsequent agreement between the members to reunite is a question of fact to be proved as such.310

Blending of property is different from tenancy in common. Pointing out this difference, it was observed by Supreme Court311 as under:

If, as the plaintiff avers, there was a disruption of the joint status in regard to all the three-brothers, it would really be immaterial if, subsequent to separation, Ram Narain and Ram Saran lived together in commensality or dealt with their properties in such manner as is ordinarily done by members of a joint Hindu family. Except in the case of reunion, which is not set up in the present case, the mere fact that separated coparceners choose to live together or act jointly for purposes of business or trade or in their dealings with properties, would not give them the status of coparceners under the Mitakshara law. As no case of re-union has been attempted to be made on behalf of the defendants, the facts that Ram Narain and Ram Saran lived in commensality, carried on business together and acquired properties in their joint names, or that their names were recorded as joint holders of properties in the settlement records might at best create a tenancy in common between them, but not a joint tenancy under the Mitakshara law which would attract the law of survivorship.312

Composite family

The concept of composite family is not one known to conventional Hindu Law. It has come to be recognized in law on the basis of custom prevailing in certain parts of South India and in particular in the State of Andhra Pradesh, Judicial precedents have set down the requirements before there could be a spelling out of such a custom. There must be such a custom in the family itself. The constitution of the composite family must be traced to an agreement express or implied. The constitution should have been for the purpose of living and working together, so that the resources of the families could be pooled; their gains thrown into the joint stock; the common risks could be shouldered together and the resources of the units could be exploited without discrimination for the purposes of the entire family called the composite family. Only when these ingredients are demonstrated to have had been present by acceptable evidence, Courts could accept this theory of composite family.313

Family business

Under the Hindu law, there is no presumption that a business standing in the name of any member is a joint family one even when that member is the manager of the family, and it makes no difference in this respect that the manager is the father of the coparceners. It is no doubt true that with reference to a trade newly started there is this difference between the position of a father and a manager that while the debts contracted therefor by the former would be binding on the sons on the theory of pious obligation, those incurred by a manager would not be binding on the members, unless at least there was necessity for the starting of the trade.314

When members of the joint family by their joint labour do the business and acquire properties, the properties so acquired, in the absence of an intention to a contrary effect, would be the joint family properties.315

There is no presumption under Hindu Law that a business standing in the name of any member of the joint family is a joint family business even if that member is the manager of the joint family. Unless it could be shown that the business in the hands of the coparcener grew up with the assistance of the joint family property or joint family funds or that the earnings of the business were blended with the joint family estate, the business remains free and separate. The question therefore whether the business was begun or carried on with the assistance of joint family property or joint family funds or as a family business is a question of fact.316

In regard to starting of new business, unless the new business entered into by the manager, is a speculative one, it is binding upon the family. The mere fact that the business is different in kind from the business previously carried on or that it relates to a commodity different from that which the family were dealing in previously does not make it any the less binding upon the family. It is open to a manager to extend an existing business or to divert it into new channels so long as the business remains a business and does not deteriorate into speculation.317

It is however not unreasonable to distinguish between a family whose hereditary avocation or kulacharam is trade or commerce and a non-trading family. In the latter case, of course, the starting of a new business cannot be within the powers either of a father or other managing member. In the former case, the usage of the family must be held to modify the ordinary rule relating to the joint family so as to empower the managing member to start a new business either in place of the old or in addition to it. Hindu Law does certainly recognise the usage of a trading family. And the distinction in the case of such families, between an ancestral and a new business appears, so far as the risk and liability are concerned, to be more formal than substantial. An inherited business may involve quite as much risk as a new business and apparently there is no duty on the part of a manager to close down an ancestral business notwithstanding its evident risk. The element of risk, incident in varying degree to all kinds of trade, or business, is necessarily assumed by trading families.318

However merely using the place of joint family is not sufficient to infer the business to be joint. There is no presumption that a trade or business carried on by a member of a joint family by himself or in partnership with a stranger or strangers is joint family business. Such presumption does not arise even if that member is the manager of the family and it could make no difference in this respect that the manager is the father of the coparceners. Such a presumption would not arise even if there is some joint family nucleus unless it is found that the joint family property was actually utilised for starting or carrying on business or that the income arising from the business was thrown in the common stock. The facility given by the members of the joint family to one of the members to start a business of his own in the joint family house, does not impress the business started by him with the character of joint family business. The earnings from the business cannot be treated as joint family property on the same reasoning.319

Individual property

The mental and physical capacity generated by skill and labour of an individual and indeed the skill and labour by themselves would be the properties of the individual possessing them. They are certainly assets of that individual and there seems to be no reason why they cannot be contributed as a consideration for earning profit in the business of a partnership firm. They certainly are not the properties of the HUF but are the separate properties of the individual concerned. We no longer live in an age when every member of a HUF considered it his duty to place his personal skill and labour at the services of the family with no quid pro quo except the right to share ultimately, on a partition, in its general prosperity. Today, where an undivided member of a family qualifies in technical fields — may be at the expense of the family — he is free to employ his technical expertise elsewhere and the earnings will be his absolute property; he will, therefore, not agree to utilise them in the family business, unless the latter is agreeable to remunerate him therefor immediately in the form of a salary or share of profits. Suppose a family is running a business in the manufacture of cloth and one of its members becomes a textile expert, there is nothing wrong in the family remunerating him by a share of profits for his expert services over and above his general share in the family properties.320

The heritage of Dayabhaga male does not become joint property of the heirs or of the joint family but becomes fractional individual property of the heirs.321

Where two brothers acquired the property with their own labour without any aid of joint family, the property held to be self acquired and not joint family property.322

Where a person has male issue, their Lordships contrast "separate property" with "family property" — where separate property must clearly mean self-acquired property — and lower down they add "when property belonging in common to a united Hindu family has been divided, the divided shares go in the general course of descent of separate property." In this last sentence too separate property evidently refers to self acquired property and the sentence only lays down that the divided share will follow the same line of descent as self-acquired property.323

In a Hindu undivided family which consists of a karta, his sons, their wives and minor grandchildren, if along with the karta the spouse of a son and their minor children are admitted to the benefit of the partnership or are partners of the partnership firm, obviously, their share income from the firm could not be added in computing the total income of the karta.324

When a company is floated out of joint family funds and remuneration is received by the Karta of the family from the such company it was held that the remuneration of the Karta should be treated as income of the family and not as individual income of the Karta.325 The principle of distinguishing between individual and HUF income is this— If a member of a Hindu Undivided Family joins a partnership and he is given a salary for managing the firm or rendering special services to the firm, the salary will be his individual income, but if his salary is really a part of the return of the investments made by the HUF in the partnership firm, the salary income would be added to the income of the HUF.326 The earning on account of personal qualifications and exertions and not on account of investment of family funds is personal income of Karta and not the income of HUF.327

While applying the Mitakshara law as applicable to the State of Jammu and Kashmir, it has been held that the income from hereditary profession of Priesthood is not joint family property.328

Impartible estate

Impartibility is essentially a creature of custom. In the case of ordinary joint family property, the members of the family have:

(1) the right of partition;

(2) the right to restrain alienations by the head of the family except for necessity;

(3) the right of maintenance; and

(4) the right of survivorship.

The first of these rights cannot exist in the case of an impartible estate, though ancestral, from the very nature of the estate. The second is incompatible with the custom of impartibility329 and so also the third330 . To this extent the general law of the Mitakshara has been superseded by custom, and the impartible estate, though ancestral, is clothed with the incidents of self-acquired and separate property. But the right of survivorship is not inconsistent with the custom of impartibility. This right therefore still remains.331 To this extent the estate still retains its character of joint family property, and its devolution is governed by the general Mitakshara law applicable to such property. Though the other rights which a co-parcener acquires by birth in joint family property no longer exist, the birthright of the senior member to take by survivorship still remains. Nor is this right a mere on the death of a Hindu widow to her husband's estate. It is a right which is capable of being renounced and surrendered. Such being their Lordships' view, it follows that in order to establish that a family governed by the Mitakshara in which there is an ancestral impartible estate has ceased to be joint, it is necessary to prove an intention, express or implied, on the part of the junior members of the family to renounce their right of succession to the estate. It is not sufficient to show a separation merely in food and worship.332

The general law of Mitakshara applicable to joint family property has been modified by custom and an impartible estate, though it may be an ancestral joint family estate, is clothed with the incidents of self-acquired and separate property to that extent. The only vestige of the incidents of joint family property, which still attaches to the joint family impartible estate is the right of survivorship which, of course, is not inconsistent with the custom of impartibility. For the purpose of devolution of the property, the property is assumed to be joint family property and the only right which a member of the joint family acquires by birth is to take the property by survivorship but he does not acquire any interest in the property itself. The right to take by survivorship continues only so long as the joint family does not cease to exist and the only manner by which this right of survivorship could be put an end to is by establishing that the estate ceased to be joint family property for the purpose of succession by proving an intention, express or implied, on behalf of the junior members of the family to renounce or surrender the right to succeed to the estate.333

The right of survivorship still remains and it is by reference to this right that the property, though impartible, has, in the eyes of law, to be regarded as joint family property. The right of survivorship which can be claimed by the members of the undivided family which owns the impartible estate should not be confused with a mere spes succession is. Unlike spes succession is, the right of survivorship can be renounced or surrendered.334

Impartible moveable property

None of the considerations which are relevant in respect of immovable property would apply to movable property, and so, the theory of incorporation cannot apply to such movable property. That, however, is not to say that by a family custom, movable property cannot be treated as impartible. If a family custom is proved in the manner in which family customs have to be proved that certain category of movable property is treated by the family as impartible, that custom will, no doubt be recognised.335

The income of an impartible estate and the accumulation of such income are the absolute properties of the holder. The immovable properties would be incorporated with impartible estate. It must be proved that the holder had impressed the immovable properties as part of the estate. But the movable properties will not. Movables are not an accretion to the estate as in the case of an ordinary joint family estate.336

Alienation of impartible estate

The holder of an impartible estate has the power of alienation not only by transfer inter vivos, but also by a will, even though the disposition by will may altogether defeat the right of survivorship of the junior members of the family. When under certain circumstances the right of a coparcener to take by survivorship can be defeated, no exception can be taken, if the right of survivorship of junior members of an impartible estate to succeed to it is defeated by the holder thereof by disposition by a will.337

Income of impartible estate

The income of an impartible estate is not income of the undivided family but is the income of the present holder, notwithstanding that he has sons or brothers from whom he is not divided. The fact that the son's or brother's right to maintenance arises out of the eldest brother's possession of impartible estate and is a right to be maintained out of the estate does not make it a right of a unique or even exceptional character or involves the consequence at Hindu Law that the income of the estate is not the holder's income. Income is not jointly enjoyed by the party entitled to maintenance and the party chargeable nor can it be said that the respective chances of each son to success by survivorship make them all co-owners of the income with their father or make the holder of the estate a manager on behalf of a Hindu family of which he and they are the male members of the family. The right of joint enjoyment which is ordinary incident to a coparcenary, where the joint estate is partible is excluded by the rule of primogeniture and impartibility.338

Manager or Kartha

Existence of Joint Hindu Family constituting of either male members or one male member, by virtue of which after the death of Karta of the Joint Hindu Family, family continued to be Joint Hindu Family provided one male member exists. Mother being natural guardian can meddle with the interest of her minor children which is inclusive of male and female members. In the absence of male member, the family property in the hands of widow and her female children cannot be characterised as Joint Hindu Family Property with a view to enjoin the widow to act either as Manager or as natural guardian to meddle with the family property with a view to bind the interest of minor daughters who will have succeeded to the estate of their father by virtue of succession under the provisions of Hindu Succession Act, 1956 de hors the provisions of Section 8(3) of the Hindu Minority and Guardianship Act. Further a joint and undivided family may consist of persons who do not form any coparcenary at all, it may consist of female persons only provided there is amongst them a potential mother who in the way of nature and may add a male member to it.339

Hindu Joint Family can exist with one male member. While dealing with the powers of mother as natural guardian regarding the Joint Family Properties existence of male member is contemplated. Further, there are instances where male member is a minor even then he can be construed as Karta of the Joint Hindu Family and mother can as natural guardian of the Manager minor Karta of Joint Hindu Family can meddle with the family properties for family necessity so as to bind all the members of Joint Hindu Family.340

Two persons may look after the affairs of a joint Hindu family on the basis of the members of the joint Hindu family clothing them with authority to represent the family. They would be two persons entitled to represent the family and their power to represent would depend on the terms of the authority conferred on them by the members of the joint Hindu family. Their authority to act for the family is not derived under any principle of Hindu Law, but is based on the members of the Joint Hindu family conferring certain authority on them. It cannot, therefore, be said that when two such representatives of a joint Hindu family sue and obtain a decree in their favour for the benefit of the joint Hindu family, and an appeal is filed against both of them as respondents representing the joint Hindu family, the other representative would continue to represent the joint family on the death of one of the representatives, he could not possibly do so when the authority given by the joint Hindu family be to the effect that both of them were to act jointly. In the absence of any knowledge about the terms of authority of the two representatives, it is not possible to urge successfully that on the death of one of the representatives, the other representative still continued to represent the joint Hindu family. On the death of one of the representatives, the karta of the family, in accordance with the principles of Hindu Law, will automatically be the person entitled to represent the joint Hindu family till such time that the family again decides to confer the authority on specified members of the joint Hindu family to represent it.341

When a karta of a Hindu undivided family is a partner in a partnership firm, he has a dual capacity; qua the partnership, he functions in his personal capacity and qua third parties, in his representative capacity. Under the Income Tax Act, when he is assessed in respect of the income derived by him from the partnership firm as a partner, it is in his representative capacity as karta of the Hindu undivided family and not as an individual as such. That is because his capacity vis-à-vis spouse/minor children who are members of the Hindu undivided family is that of karta and not as individual through vis-à-vis other partners of the partnership firm he functions in his personal capacity.342

Partnership business

A joint Hindu family as such cannot be a partner in a firm, but it may, through its karta enter into a valid partnership with a stranger or with the karta of another family. When two kartas of different families constituted a partnership the other members of the families did not become partners, though the kartas might be accountable to them.343

When the karta of a joint Hindu family enters into a partnership with strangers, the members of the family do not ipso fact becomes partners in that firm. They have no right to take part in its management or to sue for its dissolution. The creditor of the firm would no doubt be entitled to proceed against the join to family assets including the shares f the non-partner coparcencers for realisation of their debts. But that is because under the Hindu Law, the karta has the right when properly carrying on business to pledge the credit of the joint family to the extent of its assets, and not because the junior members become partners in the business. If members of a coparcenary are to be regarded as having become partner in a firm with strangers, they would also become under the partnership law partners inter se, and it would cut at the very root of the notion of a joint undivided family to hold that with reference to coparcenary properties the members can at the same time be both coparceners and partners.344

Rights of members

In the case of a joint family property, the members of the family can claim four rights:

(1) the right of partition;

(2) the right to restrain alienations by the head of the family except for necessity;

(3) the right of maintenance;

(4) the right of survivorship.

Right of widow

In order to constitute a joint family, it is not always necessary that there should be two male coparceners. Even prior to the Hindu Succession Act, 1956, in a joint family property a wife or other female members were entitled to maintenance under the Hindu Women's Right to Property Act, 1937. This Act introduced an important change in law relating to the rights of women succession, which came into force from April 14, 1937. This Act gave at least a limited right to property to certain classes of the women members of the joint family. This limited right has been converted to a full rights as per section 14 of the Hindu Succession Act. Besides under section 6 of the Hindu Succession Act, this aspect has also been dealt with by providing the manner of an devolution of interest in the coparcenary property. Section 8 gives rights in the property of a male Hindu which are to devolve according to the section as mentioned in the said Act. However, from the above provisions of the Act, a Hindu is also empowered to dispose of other property which is capable of being disposed of by him in the Indian Succession Act but all these provisions indicate that a female has also a right over the property. A coparcener does not have an unfettered right of disposal of property under the present law.345

A full ownership conferred on a Hindu female under Section 14(1) of Hindu Succession Act, 1956 is not defeatable by the adoption made by her to her deceased husband after the Act came into force. When she has inherited the property of her husband as class-I heir, she is entitled to full ownership over the property of her husband; and, as such, because of the subsequent adoption, she will not be divested of her right.346

In a case where there is another coparcener in the family at the time of the death of the adoptive father, it cannot also be said that the property became vested in the other coparcener, as the essence of a coparcenary under Mitakshara Law is Unity of Ownership, in that there is community of interest and unity of possession and on the death of one of the coparceners, the property devolves on the sole surviving coparcener. In that view of the matter it would be inappropriate to say that the property became vested in the sole surviving coparcener on the death of the other coparcener.347

The fact that the Mitakshara recognises proprietary rights in respect of joint family property only of the males while conferring only such rights as right to maintenance on the females does not mean that a Mitakshara joint family should consist only of men and not of women also. It is also clear that the character of the family property does not change by reason of the fact it may come to be held by a single male coparcener because if and when the male coparcener either begets or adopts a son or the widow of a deceased coparcener makes an adoption the son so born or adopted acquires a right by birth or adoption in that property.348

Where a property was set apart for maintenance of widow mother is in recognition of her right to maintenance and the widow becomes full owner on enforcement of Hindu Succession Act, 1956, it was held that this position remained unaffected by partition among her sons.349

Separate residence

The law governing a joint Mitakshara family dies not discountenance either separate acquisition of separate business by different members of the joint family. Separate residence does not indicate severance of a joint status. Once the shares are defined there is a severance of joint status. It is true that for partition physical division of property, is not necessary, and once the shares have been defined, it will amount to disruption of the joint status. But, at the same time mention of separate shares of different branches in the survey record of rights does not indicate at all that there was definition of the shares in the sense that severance of joint status had taken place. In all cases, the shares of different branches of the joint Mitakshara family are indicated in the survey record of rights, and the khatian, therefore, cannot be recorded as a document evidencing definition of shares. The definition of shares must be brought about with an intention to separate and mere mention of the shares of different branches in the revenue records does not indicate that the shares have been defined with the necessary consequence of the severance of the joint status. A mere definition of shares in revenue and village papers, would not, by itself, be conclusive evidence, even that an actual partition was then intended. In order to establish separation, it must further be proved that such definition of shares was with a view to obtain partition. In absence of such evidence, mere definition of share by itself affords as very slight indication of actual separation and is insufficient to displace the presumption of jointness.350

Share of members

In a joint Hindu family business, no member of the family can say that he is the owner of one-half, one-third or one-fourth. The essence of joint Hindu family property is unity of ownership and community of interest, and the shares of the members are not defined. Similarly, the patterns of the accounts of a joint Hindu family business maintained by the Karta is different from those of a partnership. In the case of the former the shares of the individual members in the profits and losses are not worked out, while they have to be worked out in the case of partnership accounts.351

Sovereign estate

If the Estate is a sovereign Estate, the ordinary incidents of ancestral coparcenary property can not be applied to that Estate. The characteristic feature of ancestral coparcenary property is that members of the family acquire an interest in the property by birth or adoption and by virtue of such interest they can claim for right: (1) the right of partition; (2) the right to restrain alienations by the head of the family except for necessity; (3) the right of maintenance; and (4) the right of survivorship. It is obvious from the nature of a sovereign Estate that there can be no interest by birth or adoption in such Estate and these rights which are necessary consequence of community of interest cannot exist. The Chief of a sovereign Estate would hold the Estate by virtue of his sovereign power and not by virtue of municipal law. He would not be subject to municipal law; he would in fat be the fountain head of municipal law. The municipal law cannot determine or control the scope of an extent of his interest in the Estate or impose any limitation on his powers in relation to the Estate.352

A sovereign ruler would be the full and complete owner of the Estate entitled to do what he likes with the Estate. During his lifetime no one else can claim an interest in the Estate. Such an interest would be inconsistent with his sovereignty. To grant that the sons acquire an interest by birth or adoption in the Estate which is a consequence arising under the municipal law would not be permissible. Therefore the distinction drawn between public and private properties of the ruler, can not be drawn.353

Tenancy laws

In the case of tenancy laws, the principles of Hindu law have been made applicable. On the import of principles of Hindu Law, the acquisition of holding by one member of the family may ensure to the benefit of other members of the joint Hindu Family. They may arise in the following circumstances354 :—

(i) The holding is acquired by Karta or head of the joint Hindu family for himself and for other members of the family and he invests the amount from joint family fund or from ancestral property for such acquisition.

(ii) The acquisition by one of the members of the Joint Hindu family but from joint family fund and such acquisition ensures to the benefit of all the members of the joint family.

(iii) Acquisition by one of the members of the Joint Hindu family from his own fund but blended it with joint family property.355

Succession

Succession cannot be in abeyance. Section 6 of the Hindu Succession Act provides for devolution of interest of a coparcenary property. The Proviso thereto is that if the deceased male Hindu had left him surviving a female relative in Class A, then the interest devolves by succession under the Act.356

Hindu Joint Family can exist with one male member. While dealing with the powers of mother as natural guardian regarding the Joint Family Properties one thing is evident that existence of male member is contemplated. Further, there are instances where male member is a minor even then he can be construed as Karta of the Joint Hindu Family and mother can as natural guardian of the Manager minor Karta of Joint Hindu Family can meddle with the family properties for family necessity so as to bind all the members of Joint Hindu Family.357

A Full Bench of Madras High Court had held that an undivided Hindu father has no right to bequeath coparcenary property.358 The disability of a coparcener in disposing of his undivided interest in the property by Will or other testamentary document under the old Hindu Law is removed by Section 30 of Hindu Succession Act, 1956 According to Section 4 any custom inconsistent with any provision of this enactment is abrogated. In the expression "any other law for the time being in force", the 'law' will include any statutory law or textual law or customary law. It would, therefore, follow that if there was any prohibition under the old Hindu Law the same stands removed after coming into force of Section 30 of the Hindu Succession Act.359

However a father under Mitakshara Law has absolute right of disposition of self-acquired property by way of sale or gift to any person including one of his own sons.360

Succession to impartible estate

Succession is governed by the rules which govern succession to partible property subject to such modifications only as flow from the character of the impartible estate; the only modification which impartibility suggests in regard to the right of succession is the existence of a special rule for the selection of a single heir when there are several heirs of the same class who would be entitled to succeed to the property if it were partible under the general Hindu law; and in the absence of a special custom, the rule of primogeniture furnishes a ground of preference. In determining a single heir according to the rule of primogeniture the class of heirs who would be entitled to succeed to the property if it were partible must be ascertained first, and then the single heir applying the special rule must be selected.361

The principle of law that is applicable to a coparcenary property or to the coparceners inapplicable to an impartible estate or to the holder thereof except that an impartible estate is considered to be a joint family property to the extent of the junior members succeeding to the estate by right of survivorship. When under certain circumstances the right of a coparcener to take by survivorship can be defeated, no exception can be taken, if the right of survivorship of junior members of an impartible estate to succeed to it is defeated by the holder thereof by disposition by a will.362