Law Web: common stock

Sunday, 16 August 2015

Whether coparcener can unilaterally throw his separate property in common stock of joint family property?

Further, the decision of Orissa High Court in Commissioner of Income Tax, Orissa v. Harish Chandra Gupta, decided on 02.02.1981 was relied upon by the learned counsel for the defendants, wherein, it was held as under:

"The separate property of a Hindu ceases to be separate property and acquires the characteristics 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 a separate property. The act by which the coparcener throws his separate property in 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 treats it as a property of the family. No sooner than he declares his intention to 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".

Delhi High Court

Vineeta Sharma vs Rakesh Sharma And Ors. on 29 October, 2013

Author: M. L. Mehta

Citation;AIR 2015 (NOC)895 Delhi

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The law relating to blending of separate property with joint family property is well settled. 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.

10. The contention of the learned counsel that in the absence of there being any joint family property, the separate property of the plaintiff's father could not be impressed with the character of joint family is noted for rejection. The law in this regard is well settled. Reference can be made to the decision of our High Court in Dr.Keswal Krishan Mayor Vs. Kailash Chand Mayor and Ors., 1977(1) 2 Delhi 97, wherein it was held thus:

"As I understand the law laid down by the Supreme Court, it does not lay down that a separate property could not be impressed with the character of joint Hindu family property in the absence of the existence of a joint family or coparcenary property. The existence of joint family property is not necessary before a member of the family throws his self-acquired property in the common stock. The existence of a joint estate is not an essential requisite to constitute a joint family and a family which does not own any property, movable or immovable, may, nevertheless be joint. If the existence of the coparcenary property is considered as a pre-requisite for throwing the property into the common hotchpotch or common stock, then, only those joint families who are already possessed of ancestral property, can receive self-acquired properties of coparceners. If the arguments is taken to its logical conclusion, it will lead to absurdities or a situation that no joint Hindu family which does not own any ancestral property can ever acquire any property from any individual coparcener who intends to impress the self-acquired property with the character of a joint family property. The term „blending‟ may suggest the existence of a nucleus but that does not mean that it is not possible to conceive of coparceners impressing their self-acquired properties with the status of the joint family property unless it is shown that the joint Hindu family is already possessed of a nucleus or ancestral stock or ancestral property. There is no reason to limit the cases of blending to only those families owning coparcenary property. Throwing the self-acquired property in the common stock or hotchpotch is a well-recognized incidence of the joint Hindu families".