Sunday, 10 June 2018

NOTES ON JOINT FAMILY PROPERTY UNDER HINDU LAW


Mitakshara school divides property into two classes,viz:

1) Unobstructed heritage:- Property in which a person acquires an interest by birth is called unobstructed heritage. It is so called because the accrual of the right to such property has no obstruction. Thus property inherited by a hindu from his father,father's father,or father's father's father, is unobstructed heritage. Their right to such property arises from mere fact of their birth in the family and as soon as they are born,they become coparceners of such property along with their paternal ancestor. Ancestral property is therefore is unobstructed heritage.

Read important Judgment on ancestral property:
Click here

2) Obstructed heritage :- If however right to property accrues not by birth but on the death of last owner without leaving any issue, such property is called obstructed heritage. It is so called because accrual of right to such property is obstructed by the existence of owner of such property. Thus property which devolves upon parents, brothers, nephews,uncles etc upon the death of last owner is obstructed heritage. These relatives do not take any vested interest in the property by birth. Their right to such property arises for the first time when owner of property dies.Until that time,they have a mere spec successionis( a bare chance of succession) to such property which would be realised only if they live longer than the owner of property.

According to Hindu law, property can be divided into two main classes,namely-

a) joint family property, and

b) separate property.

In turn, joint family property can be divided into two classes,namely-

1) ancestral property,and

2) separate property of coparceners thrown into common coparcenary stock.

Ancestral property is a species of coparcenary property. Ancestral property is acquired by unobstructed heritage.

Which property is ancestral property or separate property?
1) Property inherited from a paternal ancestor is ancestral property.
2) Property inherited from maternal grand father is not ancestral property,but it is his separate property.
3) Property inherited from collaterals or from females will be his separate property.
4) Share alloted on partition of ancestral property is ancestral property for his children. As regards other relatives, such a share is separate property.
5) Property obtained by gift or will from a paternal ancestor whether it will be ancestral property depends on facts of case.
6) Accretions:- Accumulations and accretions of income of ancestral property are ancestral property. So also property purchased or acquired out of the income or with the assistance of ancestral property would be ancestral property. Property purchased out of sale proceeds of ancestral property is also ancestral property.

PROPERTY THROWN INTO COMMON STOCK(DOCTRINE OF BLENDING)

It sometimes happens that property which was originally separate or self-acquired property of a member of joint family is voluntarily thrown by him into common stock with the intention of abandoning all claims of such property. If this is done, such property becomes joint family property by operation of doctrine of blending. The act by which coparcener throws his separate property into common stock is a unilateral act.As soon as he declares his intention to do so ,the property assumes the character of joint family property.
However clear intention to waive his separate rights must be established,and such intention cannot be inferred from the mere fact that he allowed the other members of family to use such property jointly with himself. Acts of generosity or kindness are not to be mistaken for admission of legal obligation. Generally presumption is against blending of self-acquired property with joint family property. The onus of proof is on person who alleges such a blending.

Read important Judgment on blending of property:
Click here

Separate property:- All property other than joint family or coparcenary property is separate property. Even if a hindu is a member of a joint family,he may possess separate property. The term self-acquired indicates that the property has been acquired by a coparcener by his own exertion without assistance of family funds.

Gains of learning Act 1930.
An important species of self-acquired property in hindu law is what is known as gains of learning. The term gains of learning means all acquisitions of property made substantially by means of learning.
Hindu gains of learning Act 1930 governs this field.





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