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.

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Whether father can execute will in respect of ancestral property which he received in partition?

 It is clearly emerging factual and legal position in the matter that there had been partition among father and three sons in 1978 whereunder each of them received one fourth share in the inherited coparcenary property and that in 1990, the father under a registered will, had bequeathed his one fourth separate share received in partition, to only two sons. The third son though being alive, had not received anything under the bequest. Father of the plaintiff died in 1991. Thereafter, the properties bequeathed were being enjoyed by the two sons as their independent properties. That enjoyment had never been questioned by the third son. The Maharashtra amendment to Hindu Succession Act had been effective since 1994 and amendment to section 6 to Hindu Succession Act had been made effective from 2005. Disposition of the property by the father of the plaintiff, as such, obviously has been before 20th day of December, 2004. On partition, the property had become separate property of father and as such, he had an absolute right to deal with the same and which he did by executing a registered will, which appears to have been acted upon. Coparcenary nature of the property had ceased to continue upon partition of the properties among the partitioning members of the coparcenary, since 1978. It is not the case that any male member had been born after 1978 to deceased father in order to lay claim to any share in the property. Father admittedly had executed will of his partitioned separate share in 1990 and in 1991, he has expired. Disposition of suit property among coparceners then had taken place before Maharashtra Amendment of 1994 to Hindu Succession Act, 1956. Even if it is assumed that amendment to section 6 of the Hindu Succession Act, is retroactive, the legislature has already made its intention clear that disposition of properties made before 20th December, 2004 would remain unaffected.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 440 of 2015

Decided On: 22.03.2017

 Leelavati Baburao Chaudhari Vs. Pitambar Shridhar Attarde and Ors.

Hon'ble Judges/Coram:

S.P. Deshmukh, J.

Citation: 2017(6) MHLJ 469

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Whether father can transfer ancestral property as his separate property after birth of son?

A person, who for the time being is the sole surviving coparcener as in the present case Gulab Singh was, before the birth of the plaintiff, was entitled to dispose of the coparcenary property as if it were his separate property. Gulab Singh, till the birth of plaintiff Rohit Chauhan, was competent to sell, mortgage and deal with the property as his property in the manner he liked. Had he done so before the birth of plaintiff, Rohit Chauhan, he was not competent to object to the alienation made by his father before he was born or begotten. But, in the present case, it is an admitted position that the property which defendant no. 2 got on partition was an ancestral property and till the birth of the plaintiff he was sole surviving coparcener but the moment plaintiff was born, he got a share in the father’s property and became a coparcener. As observed earlier, in view of the settled legal position, the property in the hands of defendant no. 2 allotted to him in partition was a separate property till the birth of the plaintiff and, therefore, after his birth defendant no. 2 could have alienated the property only as Karta for legal necessity. It is nobody’s case that defendant no. 2 executed the sale deeds and release deed as Karta for any legal necessity. Hence, the sale deeds and the release deed executed by Gulab Singh to the extent of entire coparcenary property are illegal, null and void. However, in respect of the property which would have fallen in the share of Gulab Singh at the time of execution of sale- deeds and release deed, the parties can work out their remedies in appropriate proceeding.
Reportable

Supreme Court of India

Rohit Chauhan vs Surinder Singh & Ors on 15 July, 2013

Bench: Chandramauli Kr. Prasad, V. Gopala Gowda

Citation:AIR 2013 SC3525

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When property inherited by father can not be treated as ancestral property?

The whole argument of the learned counsel is placed on a wrong premise that there is a presumption of existence of joint family property for a joint family. The incident of joint family for Hindus is the normal rule and the presumption does not extend beyond the fact that thee exists a joint family. However, if an issue was to be brought before the Court, of whether the father was competent to execute the sale, the impeaching plaintiff as a son shall prove two aspects: (i) that the property is ancestral and (ii) that the sale was without necessity. Both must exist and if only one is admitted to be shown, the case will fail.

Without any discussion, I am prepared to accept that the father was selling the property without any necessity. If the matter would therefore require consideration of whether the property was ancestral, then it must be understood that the expression is legally loaded. The ancestral property is just not a property coming to a person from a father or grand father. The manner of such devolution is crucial. The property coming from grand father to father on intestate succession will be understood in legal parlance applicable to Hindus as unobstructed heritage. There is another form of devolution as obstructed heritage, which occurs when there is any form of transfer of right otherwise then under natural succession. Consequently, the property obtained by a Hindu male by sale or gift will be taken as property obtained by that person as an obstructed heritage and that property shall be separate property in his hands even vis-a-vis his own son. Consequently, the property that was obtained by the plaintiff's grandfather Shankar by way of Hiba from his father will be separate property and on his death after the Hindu Succession Act, the property inherited by his son namely, the 2nd defendant along with his own brothers and sisters will be the property taken as having devolved on them by the operation of Section 8 of the Hindu Succession Act. Hence the property inherited by father would partake the character of separate property, as held by the Hon'ble Supreme Court in Chander Sen's case (supra). This decision was cited and proved in later decision of the Supreme Court in Yudhishtir Vs. Ashok Kumar, AIR 1987 SCC 558. If the property was, therefore, held by the father on succession along with his own brothers and sisters, that property cannot be said to be ancestral property in his hands vis-a-vis his son, the plaintiff, merely by  the fact that he did not earn the same but got it on succession from his father. The normal understanding of an ancestral property as that which has come from the ancestor and to be treated as such qua his own son will have to be understood and reinterpreted in the light of the change of law that came about by the advent of the Hindu Succession Act, 1956.

Punjab-Haryana High Court

Rajesh Kumar And Anr vs Gurmeet Singh And Anr on 7 December, 2015

                      

  RSA No. 2660 of 2015 (O&M)

Citation;AIR 2016(NOC)273(P&H)

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How to prove that separate property of father was thrown into hotchpotch?

The surviving point for consideration was whether there was anything brought on the record to show that the property held by the 2nd defendant as inherited from his father Shankar, had been impressed with the character of joint family property. A separate property can always be treated as joint family property by merger with admitted joint family properties existing or otherwise by throwing the separate property into the hotchpot. A case of blending or merger or deviations from the understanding of obstructed and unobstructed heritage would require to be specifically pleaded and proved. There can be no presumption that the property inherited by the father under the Hindu Succession Act, 1956 held as such was treated by the father as joint family property along with his sons. Such treatment must be expressly pleaded and there must be evidence of such treatment showing that the father had allowed all his sons to enjoy the properties not merely under the bounty of the father but as a right obtaining to them by the treatment made possible by the father by his conduct. The contentions made before the Court are far-fetched from what is necessary to be established at the trial. The dismissal of the plaintiff's suit by the Appellate Court was under the circumstances justified and there is no scope for interference.

Punjab-Haryana High Court

Rajesh Kumar And Anr vs Gurmeet Singh And Anr on 7 December, 2015

                      

  RSA No. 2660 of 2015 (O&M)

Citation;AIR 2016(NOC)273(P&H)

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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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How to prove blending of separate property with joint family property?

 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".

Delhi High Court

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

Author: M. L. Mehta

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