An Article Regarding "DIVISION OF JOINT HINDU FAMILY PROPERTY"

DIVISION OF JOINT HINDU FAMILY PROPERTY

Hindu Joint Family most frequently referred in property matters, as Hindu Undivided Family (H.U.F) is a unique institution of Hindus more particularly of Mithakshara school.  The ancient Hindu Law was not codified but practice was handed over from generation to generation and Manu Smrithi is the most ancient codified law available. The origin of Hindu law may be traced to Sruthi which consists of four Vedas and commentaries, Smrithi's, Customs as practiced for long period, case laws, and later on various legislative enactments.

The Hindu law has two major schools of thought 1.Mithakshara 2.Dayabhaga.  Mithakshara law is practised through out India except West Bengal and some parts of eastern India.  Under Mithakshara law the members of the Hindu Joint family acquires interest in the family property by birth which has led to formation of Joint Hindu Family.

In Dayabhaga the right to family property is acquired only through surviorship. 

Originally Hindu Succession Act 1956 did not recognise and grant full property rights to female members of joint family or co-parcenary property.  Various amendments were brought by the different states to the Hindu Succession Act; Andhra Pradesh, Tamilnadu, Maharashtra, Kerala, and Karnataka. The amendment which grants equal property rights to female members of Coparcenary property in Karnataka has come into effect from 30.07.1994.

Hindu Joint Families are gradually becoming obsolete and Government   of Kerala, by amendment dated 01.12.1976 has abolished the Joint Hindu Family.  The institution of Hindu Joint Family, though they are obsolete, the devolution of property mostly have their origin in joint families as such it is necessary to understand what constitutes a Joint Hindu Family.

Joint Hindu Family

A Joint Hindu Family has a common male ancestor and consists of lineal male descendants includes wife or wives, widows and unmarried daughters of such common male descendants.  Thus a single member cannot constitute a Hindu Joint Family.  Joint Hindu Families may be big which contains many small families of different branches, but with a common male ancestor.  It may also contain a single male member and his wife and daughters. Though a single male member cannot constitute a joint family he may on marriage both husband and wife constitutes the Joint family.

Co-parcenary

Co-parcenary is different from Joint Hindu Family, which is much narrower than joint family.  Joint family may consist of any number of generations but co-parcenary is limited to the father and three lineal descendants children, grand children and great grand children.  These generations acquire the interest in the family property by birth.

The property owned by Joint Hindu Family is a co-parcenary property.  The properties inherited from father, grandfather and great grand father also constitutes co-parcenary property.  But a property inherited from maternal grandfather is held not to be a ancestral / co-parcenary property.  A distinction has to be made between co-parcenary property and self acquired property.  Property may be acquired through inheritance, partition, gift and other modes.  The nature of the title depends upon how the property was acquired.  

Partition : The ancient inherited property may be shared among legal heirs on partition.  Such acquired property will be a joint family property to his lineal descendents like his children, grand children, great grand children, but in case of other relations it will be his separate self acquired property.

Jointly acquired property

The members of coparcenary may jointly acquire the property.  The devolution of such property depends upon the intention of the purchasers.  Generally it will be a joint family property unless contrary intention of owning it as co-owners or partners is intended and explicitly mentioned in documents.

Exchange

If a joint family property is exchanged to acquire another property, such acquired property is joint family property.

Gift

Gift is recognised mode of acquiring the property and the property acquired through gift is the separate property of the donee and does not constitute a part of Joint Hindu Property.

Self acquired property thrown into Joint Family Property

The co-parcener might have acquired properties out of his own income which is his separate property.  Such coparcener may throw his separate self acquired property into joint stock of joint family property, which becomes the property of Joint Hindu Family.  But the intention must be clear.  The mere intention that the numbers of Joint Hindu Family are entitled to enjoy the benefits of separate property may not be enough evidence to include the separate property in Joint Hindu Family properties.

Income from joint family property

All the incomes arising from the joint family properties are joint family property income.  Any properties purchased from the income of joint families is also joint family property.

Separate property

Any co-parcener, member of Joint Hindu family may acquire property out of his own self earned funds without any detriment to Joint Family Property and such property is a separate property different from Joint family property. 

Rights of Co-parceners

Every co-parcenary has right to seek partition of the Joint Hindu Property and assert his rights on his share.  The legal heirs like son, daughters have equal share in the property.  If any of the sons has predeceased, his children jointly acquire the share of predeceased son.

Every member of coparcenary has right to be maintained by Joint family funds.

As already stated co-parcenary is different and much narrower than Joint Hindu Family.  Members of Joint Hindu Family other than co-parceners do not have any rights in the co-parcenary property, but have rights of maintenance only.  On the death of any member of co-parcenary, next degree of generation becomes member of co-parcenary.

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