Hindu Joint Family and Coparcenary: An Analysis

This article attempts to explain the concepts of Hindu joint family and coparcenary rights among the members of such families through case studies and an analysis of various facts associated with the two schools of thought.

A Hindu Joint Family is an extended family arrangement that has enormous legal importance in India. The joint and undivided family has hitherto been the normal condition of Hindu Society. The underlying importance of a joint family is that it checks its origin back to one common ancestor. Moreover, with the births and deaths of members, joint families can continue for eternity.

I. Hindu Joint Family

A Hindu joint family consists of the common ancestor and all his lineal male descendants up to any generation together with the wife or wives (or widows) and unmarried daughters of the common ancestor and of the lineal male descendants. The existence of a common ancestor is necessary for bringing a joint family into existence. For its continuance, a common ancestor is not a necessity.

According to Sir Dinshaw Mulla, “A joint Hindu family consists of all persons lineally descended from a common ancestor and included their wives and unmarried daughters. A daughter ceases to be a member of her father’s family on marriage and becomes a member of her husband’s family”. A joint and undivided family is the normal condition of Hindu society.

Joint Hindu Family is an inevitable and fundamental concept of the Hindu family law, which at present-day is governed by the Hindu Succession Act, 1956. It is a normal condition of Hindu society. For a Hindu, it is a never-ending process. If in one generation it is brought to an end by means of a partition, it comes back into existence in the next generation automatically. This rule gives support to the presumption that every Hindu family is a Joint Hindu family.

Analysis of various concepts through cases

It is presumed that the family continues to be a joint family if it is joint in affairs of food, worship, and estate, as observed in judgements such as Rukhmabai v. Lala Laxmi Narayan[1] and Rajagopal v. Padmini[2]. However, if a family is not joint in food and worship, i.e. even if they live separately, they constitute a Joint Hindu family provided they are joint in the estate.

A Joint Hindu Family is neither a corporation nor a juristic person as they do not have a separate legal entity from that of its members, as held in the case of Chhotey Lal and Others v. Jhandey Lal and Another[3]. It is a unit and is represented by the Karta of the family in all matters.

It consists of all the family members, i.e. all the male members descended lineally up to any generation from a common ancestor together with their mothers, wives, widows, and unmarried daughters as observed in Surjit Lal Chhabda v. Commissioner of Income Tax[4]. A daughter remains a part of her parents’ joint family till the time she is unmarried. Once she gets married, she becomes a part of her husband’s Joint Hindu family.

If the daughter is deserted by her husband or becomes a widow and returns to her father’s home permanently, she again becomes a part of that Joint Hindu family. Her children, however, remain a part of their father’s Joint Hindu family and do not become a part of the mother’s father’s Joint Hindu family. In the case of Gur Narain Das v. Gur Tahal Das[5], it was observed that even an illegitimate son of a male descendant will be a part of his Joint Hindu family.

An undivided Hindu family is ordinarily joint not only in estate but also in food and worship. The existence of joint estate is not an essential requisite to constitute a joint family, and a family, which does not own any property, may nevertheless be joint. Where there is a joint estate, and the members of the family become separate in the estate, the family ceases to be joint. Mere severance in food and worship does not operate as a separation.

The property of a joint family does not cease to be joint family property belonging to any such family merely because the family is represented by a single male member who possesses rights that an absolute owner of a property may possess. It may even consist of two female members. There must be at least two members to constitute a joint Hindu family.

A single male or female cannot make a Hindu joint family even if the assets are purely ancestral. In Narenderanath v. Commissioner of Wealth Tax[6], the Supreme Court held that the expression “Hindu undivided family”, in the Wealth Tax Act is used in the sense in which a Hindu joint family is understood in the personal law of Hindus and a joint family might consist of a single male member and his wife and daughters. There is nothing in the scheme of the Wealth Tax Act to suggest that a Hindu undivided family to be considered as an assessable unit must consist of least two male members.

In Commissioner of Income Tax v. Gomedalli Lashminarayan[7], there was a joint family consisting of a father and his wife and a son and his wife, the son being the present assessee. On the father's death, the question raised was whether the assessee was to be assessed as an individual or a member of the joint Hindu family.

It was held that the son’s right over the property was not absolute because two females in the family had a right of maintenance in the property, therefore, the income of the assessee should be taxed as the income of a Hindu undivided family.

In Anant v. Shankar,[8] it was held that on the death of a sole surviving coparcener, a Hindu joint family is not finally terminated so long as it is possible in nature or law to add a male member to it. Thus, there can also be a joint family where there are widows only.

II. Coparceners

The people who have a right by birth in the joint family property are called Coparceners. In the ancestral property of a male, his son, grandson and great-grandson have a right by birth.

Text of Yajnavalkya says: “In land, corrode or wealth received from the grandfather, the ownership of the father and son is equal”. This means that the son can enforce a partition in ancestral property, that is, property descending to the father from his male ancestors. Such property becomes coparcenary property in the hands of the sons.

That is, their sons, grandsons and great-grandsons can claim a share in it by birth. The share obtained by enforcing a partition would also be coparcenary property. The self­-acquired property of the coparceners may be kept apart by them or maybe blended by them with the coparcenary property.

Coparcenary is a narrower body than the joint Hindu family.

Schools of Thought

The ancient schools of Hindu laws are of two types. These were in existence even prior to the codification of Hindu law with the Hindu Succession Act, 1956.

The Mitakshara School

In the Mitakshara School, the allocation of parental property is based on the rule of possession by birth. Moreover, a man can leave his property at his will. The joint family property goes to the group known as coparceners. They are the people who belong to the next three generations.

Hence, the joint family property by partition can be, at any time, converted into a separate property. Therefore, in Mitakshara School, sons have an exclusive right by birth in the joint family property.

The Mitakshara concept of coparcenary is based on the notion of the son’s birthright in the joint family property. Though every coparcenary must have a common ancestor to start with, it is not to be supposed that every extant coparcenary is limited to four degrees from the common ancestor.

When a member of a joint family is removed more than four degrees from the last holder, he cannot demand a partition, and therefore he is not a coparcenary. On the death of the last holder, however, he would become a member of the coparcenary if he was fifth in descent from him and would be entitled to a share on the partition, unless his father, grandfather and great-grandfather had all predeceased the last holder.

Whenever a break of more than three degrees occurs between any holder of the property and the person who claims to enter the coparcenary after his death, the line ceases in that direction, and the survivorship is confined to those collaterals and descendants who are within the limit of four degrees.

Important Judgements

In the case of Attorney General of Ceylon v. Arunachalam Chettiar[9] a father and his son constituted a joint family governed by the Mitakshara School. The father and the son were domiciled in India and had trading and other interests in India.

The undivided son died, and the father became the sole surviving coparcener in a Hindu undivided family to which a number of female members belonged. In this case, the court said that the widows in the family, including the widow of the predeceased son, had the power to introduce coparceners in the family by adoption and that power was exercised after the death of the son.

It was observed in the case of Gur Narain Das v. Gur Tahal Das[10] that even an illegitimate son of a male descendant will be a part of his Joint Hindu family.

In Gowli Buddanna v. Commissioner of Income Tax Mysore[11], a family consisted of a father, his wife, his two unmarried daughters and his adopted son. After the death of the father, the question arose of whether the sole male surviving coparcener of the Hindu joint family, his widowed mother and sisters, constituted a Hindu undivided family within the meaning of the Income-tax Act.

In this case, it was held by the court that the property of a joint family does not cease to belong to the family merely because the family is represented by a single coparcener who possesses rights that an owner of the property may possess. The property which yielded the income originally belonged to a Hindu undivided family.

The essence of a coparcenary under Mitakshara law is the unity of ownership. The ownership of the coparcenary property is in the whole body of coparceners. According to the true notion of an undivided family governed by Mitakshara law, no individual member of that family, whilst it remains undivided, can predicate, of the joint and undivided property, that he, that particular member, has a definite share.

His interest is a fluctuating interest, capable of being enlarged by deaths in the family and liable to be diminished by births in the family. It is only on a partition that he becomes entitled to a definite share. The most appropriate term to describe the interest of a coparcener in coparcenary property is “undivided coparcenary interest”.

If a Mitakshara coparcener dies immediately on his death, his interest devolves into the surviving coparceners. The Supreme Court has summarised the position and observed that the coparcenary property is held in collective ownership by all the coparceners in a quasi-corporate capacity.

The incidents of coparcenary are:

1. The lineal male descendants of a person up to the third generation acquire birth ownership in the ancestral properties of such a person.
2. Such descendants can, at any time, work out their rights by asking for partition.
3. Till partition, each member has got ownership extending over the entire property; conjointly, enjoyment of the properties is common.
4. As a result of such co-ownership, the possession and enjoyment of the properties are common.
5. No alienation of the property is possible unless it is for necessity, without the concurrence of the coparceners.
6. The interest of a deceased member passes on his death to the surviving coparceners.

Every coparcener and every other member of the joint family has a right to maintenance out of the joint family property. The right of maintenance subsists through the member's life so long as the family remains joint.

No female can be a coparcener under Mitakshara law, even the wife, though she is entitled to maintenance.

The Dayabhaga School

In the Dayabhaga School, the allocation of property is extremely simple. If a man dies intestate, his sons get a proper part of his property. According to the Dayabhaga law, the sons do not acquire any interest by birth in ancestral property.

Their rights arise for the first time on the father’s death. On death, they take much of the property as if left by him, whether separate or ancestral, as heirs and not by survivorship. Since the sons do not take any interest in ancestral property in their father’s lifetime, there can be no coparcenary in the strict sense of the word between a father and sons according to the Dayabhaga law.

The father can dispose of off ancestral property, whether movable or immovable, by sale, gift, will or otherwise in the same way as he can dispose of his separate property. Since sons do not acquire any interest by birth in ancestral property, they cannot demand a partition of such property from the father. A coparcenary under the Dayabhaga law could thus consist of males as well as females. Every coparcener takes a defined share in the property, and he is the owner of that share. It does not fluctuate with birth and death.

With respect to the self-acquired property, according to Yajnavalkya, whatever is acquired by the coparcener himself without detriment to the father’s estate, for example, a present from a friend or gift at nuptials, is his exclusive property. By the Hindu Gains of Learning Act (30 of 1930), acquisitions made by learning are self-acquisitions.

Learning means education, whether elementary, technical, scientific, special or general and training of every kind, which is usually intended to enable a person to pursue any trade, industry, profession or occupation in life.

III. Difference between the Joint Hindu Family and Coparcener

1. In order to constitute a joint Hindu family, the existence of any kind of property is not required, whereas in a coparcenary, there exists an ancestral property.
2. A joint Hindu family consists of male and female members of a family, whereas in a coparcenary, no female can be a coparcener.
3. Coparcenars are members of the joint Hindu family, whereas all the members of the joint Hindu family are not coparceners.
4. The joint family is unlimited both as to the number of persons and remoteness of their descent from the common ancestor, whereas the coparcenary is open to only certain members of a joint Hindu family.

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[1] 1960 SCR (2) 253.

[2] 1995 SCC (2) 630.

[3] AIR 1972 All 424.

[4] 1976 SCR (2) 164.

[5] AIR 1952 SC 225.

[6] 1969 SCR (3) 882.

[7] (1935) 37 BOMLR 692.

[8] (1944) 46 BOMLR 1.

[9] [1957] AC 513.

[10] AIR 1952 SC 225.

[11] AIR 1966 SC 1523.

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1. Hindu Law; Notes, Case Laws And Study Material
2. The Different Schools of Hindu law | Explained