HINDU LAW LECTURE – IV (UNCODIFIED HINDU LAW)

HINDU LAW
LECTURE – IV (UNCODIFIED HINDU LAW)
Distinction between Joint Family and Coparcenary
Joint Hindu Family differs from that of the coparcenary in the following respects.
1. Membership and composition: Joint Hindu Family encompasses an unlimited number of
members and can extend to remote descendants from a common ancestor. Membership
includes both males and females, with no restrictions based on lineage. Coparcenary is limited
to specific members within the joint family, namely males within four degrees of descent from
the common ancestor. Females are excluded from coparcenary membership, emphasizing a
narrower lineage-based composition.
2. Gender Inclusivity: Joint Hindu Family shows no distinction between males and females in
terms of membership. Both genders are considered integral members of the joint family
structure. Coparcenary is limited exclusively to males within the specified degrees of descent.
Females are excluded from coparcenary membership, reflecting a patriarchal lineage-based
system.
3. Continuation after Male’s Death: Joint Hindu Family can continue even after the death of
the male head (karta), with the family structure comprising only females. The family’s
continuity is not contingent on the presence of male members. Coparcenary may come to an
end upon the death of the last coparcener or sole surviving coparcener. The existence of
coparcenary rights is tied to the male lineage, potentially leading to its termination in the
absence of eligible male members.
4. Relationship between Concepts: Not all joint families qualify as coparcenaries. Joint Hindu
Family represents a broader familial unit that may or may not include the specific
characteristics of a coparcenary. Every coparcenary, by definition, is a subset of a Joint Hindu
Family. It embodies a narrower subset within the larger joint family structure, characterised
by specific inheritance and property rights.
5. Acquisition of Membership: Membership of Joint Hindu Family is acquired by birth or
through marriage, encompassing all descendants and their spouses and unmarried daughters.
Membership of coparcenary: is acquired by birth or, exceptionally, through the adoption of
sons. It includes only specific male descendants, such as sons, grandsons, and great-
grandsons, emphasising a narrower eligibility criterion for inclusion in coparcenary property
ownership.
Distinction between Joint Property and Joint Family Property (Coparcenary Property)
The Three terms ‘(i) Joint property’; ‘(ii) Joint family property’ and ‘(iii) Joint ancestral family
property’ are not the same. In all the three there is no doubt a common subject, i.e., property, but this
is qualified in three different ways.
The ‘joint property’ of the English law is properly held by two or more persons jointly, its
characteristic being survivorship. The ‘joint property’ differs from the ‘Joint family property’ as
shown below:

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1. Legal Origin: Joint property is derived from English law, where ownership is held jointly
with survivorship rights. The Joint Hindu Family/Coparcenary is derived from Hindu law,
emphasizing familial ties and ancestral property.
2. Acquisition of Property: Joint property can be acquired by any two individuals, irrespective
of blood or family relations. Joint Hindu Family/Coparcenary is acquired through birth,
marriage, or adoption within the family lineage.
3. Composition: Joint property involves joint ownership between two or more individuals. The
joint Hindu family/coparcenary comprises several members based on familial degrees, such
as father, son, grandson, etc.
4. Purpose: Joint property is primarily commercial or profit-driven. Religious and familial ties,
such as sapinda, form the foundation of the Joint Hindu Family/Coparcenary.
5. Acquisition of Interest: Joint property is based on equal capital investment and proportionate
shares, not acquired by birth. Every member of the Joint Hindu Family/Coparcenary acquires
an interest through birthright.
6. Pre-existence of Property: In joint property, no pre-existing property is necessary; ownership
is created by agreement. Joint Hindu Family/Coparcenary is rooted in ancestral property that
already exists within the family.
7. Creation: Joint property is created by deed or will, not by descent. Joint Hindu
Family/Coparcenary: Established by birth, not by legal documentation.
8. Transferability of Shares: Members of Joint Property have absolute rights to transfer their
shares. Transferability in a joint Hindu family/coparcenary is subject to legal, moral, and
customary obligations.
9. Stability of Interest: In joint property, joint tenants’ interests remain fixed and certain. In a
Joint Hindu Family/Coparcenary, the interests of the Coparceners change in response to births
or deaths within the family.
10. Devolution on Death: In joint property, property descends in equal shares to the heirs of all
joint tenants. In the Joint Hindu Family/Coparcenary, the entire property passes to the heirs
of the last surviving coparcener.
Coparcenary Property [Joint family property]
According to Hindu Law, property is categorised into joint family property or coparcenary property,
and separate property. Both terms, ‘joint family property’ and ‘coparcenary property’, are
synonymous, referring to property acquired jointly by members of a joint family, often with the aid
of ancestral property. This type of property is characterised by joint interest and possession among
coparceners. It devolves by survivorship, meaning upon the death of a coparcener, their share passes
to the surviving coparceners, not through succession. Crucially, male descendants of coparceners
acquire an interest in this property by birth.
Separate property, on the other hand, includes assets acquired independently by an individual
coparcener, without the aid of ancestral property. While joint family property is inherently communal
in nature, separate property may or may not be affiliated with the joint family, depending on the
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circumstances. This distinction is vital in Hindu law, delineating between property subject to the rules
of coparcenary and property held exclusively by individual members.
Joint family property or coparcenary property under the Mitakshara School of law may be stated to
include the following kinds of property:
1. Ancestral property;
2. Property acquired with the aid of ancestral or joint family property.
3. Property acquired by two or more members of a joint family as such property.
4. Separate property of the coparceners thrown into the common stock.
I. Ancestral Property
Ancestral property, according to Mitakshara law, refers to property inherited by a male Hindu
from his paternal lineage—his father, paternal grandfather, and paternal great-grandfather.
This inheritance establishes a unique status for the descendants, as sons, grandsons, and great-
grandsons automatically acquire an interest in the property by birth. This birthright ensures
that their rights are inherent from the moment of their birth, forming a fundamental principle
of coparcenary under Mitakshara law. However, this concept is distinct from property
inherited from other relatives, which is considered separate property and does not carry the
same birthright inheritance.
Under Mitakshara law, if a male Hindu inherits ancestral property and has no male
descendants at the time of inheritance, he holds the property as an absolute owner with the
freedom to dispose of it as he pleases. However, if male descendants are born subsequently,
they automatically acquire an interest in the property by virtue of their birth, thereby limiting
the owner’s absolute control over the property. This ensures the continuity of family
ownership and reinforces the communal nature of ancestral property within the coparcenary
system.
Conversely, according to Dayabhaga law, the male issue of the inheritor does not acquire any
interest in the ancestral property by birth, as they do under Mitakshara law. In Dayabhaga,
property inheritance follows a different principle, and the male descendants do not
automatically acquire rights to ancestral property upon birth. This distinction highlights the
variance in inheritance laws between Mitakshara and Dayabhaga schools of Hindu law.
The following properties are not ancestral property:
1. The property inherited from a maternal grandfather is not ancestral property,
2. The property inherited from others such as mother or from a collateral relation or from
a maternal uncle will not be ancestral property in the inheritor’s hands.
Nature of Father’s and Son’s interest in Ancestral Property
Under the Mitakshara law, each son, upon his birth, takes an interest, equal to that of his
father, in ancestral property, whether such property is movable or immovable. This right of
the son in ancestral property is totally independent of his father. It is to be remembered that
he does not claim through his father but independently of him. Therefore, a transfer by a father
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of his own interest in the coparcenary property, where such a transfer is allowed by law, does
not affect the interest of the son in the property.
A father, however, has a special power of disposal of ancestral property in the following three
cases:
1. Gift of Movable Property: The father in a joint Hindu family possesses a special power
to make gifts of movable ancestral property within reasonable limits without the
consent of his sons. This authority extends to essential acts of duty, prescribed
purposes in texts of law, gifts through affection, support of the family, and relief from
distress.
2. Gift of Ancestral Immovable Property: The father or managing member of the family
holds the authority to make gifts of ancestral immovable property for pious purposes
within reasonable limits. However, such alienations cannot be executed through a will.
This power is exclusive to the father or managing member and cannot be exercised by
other family members.
3. Sale or Mortgage of Family Property: In a joint Hindu family, the father possesses
the power to sell or mortgage the family property, including the sons’ interests, to
discharge a debt contracted for his personal benefit. For such an alienation to bind the
sons, two conditions must be met: the debt must precede the alienation, and it should
not have been incurred for an immoral purpose. This principle is grounded in the son’s
pious duty to discharge his father’s debts if they are not for immoral purposes.
Significance of the Special Powers:
These special powers vested in the father play a crucial role in managing ancestral property
within the joint Hindu family structure. They enable the father to execute transactions
necessary for familial welfare, religious obligations, and financial exigencies.
While these powers provide flexibility to the father, they are subject to limitations and
conditions established by Hindu law to ensure the protection of the son’s interests and
adherence to moral and legal principles.
II. Acquisitions with the aid of ancestral assets
All properties acquired either with the income of ancestral property or the proceeds of the sale
of such property or with the aid of ancestral property, or which are accretions thereto or
augmentations thereof, will become joint family property or coparcenary property in the hands
of the acquirer.
III. Joint Acquisitions without the help of ancestral property
Property acquired by the joint exertions of all the coparceners, though without the aid of
ancestral assets, must be presumed to be joint family property. If the acquirers are only some
of the members of the coparcenary or they are living separately and not under the same roof
as coparceners, then the acquired property is not joint family property.

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IV. Separate property thrown into common stock

It sometimes happens that the property which was originally the self-acquired or separate
property of the joint family is voluntarily thrown by him into the common stock with the
intention of abandoning all claims to such property. If this is done such property becomes
joint property by operation of the doctrine of blending.
The act by which the coparcener throws his separate property unto the common stock is a
unilateral act and a matter of unilateral and individual volition. As soon as he declares his
intention to do so the property assumes the character of joint family property or coparcenary
property.
There are conflicting opinions regarding the following while considering them as joint family
property: (i) Gifts from paternal ancestor and others; (ii) Government grant; (iii) Impartible
estates.
Mitakshara Classification of Property
The Mitakshara School classifies the property into two classes, namely, (i) obstructed heritage, or
Sapratibandha Daya, and (ii) unobstructed heritage, or Apratibandha Daya.
(i) Obstructed Heritage (Sapratibandha daya)
Property inherited by a Hindu from a person other than his father, grandfather, or great-grandfather
is obstructed heritage. It is called obstructed because the accrual of the rights to it is obstructed by the
existence of the owner. The owner holds it as his separate and absolute property. The relations of the
owner do not have a vested interest in it by birth. They are entitled to it only on the death of the owner.
The property devolving on parents, brothers, nephews, uncles etc. upto the death of the last owner, is
obstructed heritage. Because their relatives do not have any vested interest by birth their rights come
into existence only on the death of the last owner.
For example, A inherited certain property from his brother, who died without having any issues. The
inherited property in the hands of A will be an obstructed heritage for the sons of A. The sons of A
will inherit the property from A only after his death.
Obstructed heritage devolves by succession except in the following cases in which it passes by
survivorship.
1. Two or more sons, grandsons and great-grand-sons succeeding as heirs to the separate
property of their paternal ancestor take as joint tenants with rights of survivorship.
2. Two or more grandsons by a daughter who are living as members of a joint family succeeding
as heirs to their maternal grandfather take as joint tenants with rights of survivorship.
3. Two or more widows succeeding as heirs to their husband take as joint tenants with
survivorship rights
4. Two or more daughters succeeding as heirs to their father take as joint tenants.

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(ii) Unobstructed heritage (Apratibandha Daya)

The property in which a person acquires an interest by birth is called unobstructed heritage, because
it is not obstructed by existence of the owner. Ancestral property is unobstructed heritage. The
property inherited by a Hindu from his father, father’s father and father’s father’s father is
unobstructed heritage in respect of his own male issues i.e. his sons, son’s son and son’s son’s son.
Their rights come into existence by birth and the male descendants in whom the property vests, are
called coparceners. Thus, the ancestral property arrived to last male owners is unobstructed heritage.
For example, A inherited certain property from his father. Two sons born to A, namely x and y who
are coparceners with A. x and y will acquire an interest by birth in the ancestral property possessed.
by A. Thus, the property in the hands of A is unobstructed heritage, as the existence of the father is
no obstruction or impediment to his sons acquiring an interest by birth in the property.
The most important distinction between obstructed and unobstructed heritage is that unobstructed
heritage devolves by survivorship whereas obstructed heritage devolves by succession.
The Mitakshara Law recognizes the distinction between obstructed and unobstructed heritage but
under Dayabhaga Law every kind of heritage is obstructed and it does not recognise any such
distinction because according to Bengal School no person at all acquires any interest by birth in the
property of another and the rule of survivorship does not apply to this school.
Separate Property
Separate property in Hindu law refers to property owned solely by an individual Hindu, whether
acquired through personal earnings, efforts, or gifts received without detriment to the father’s estate.
This property is distinct from ancestral or joint family property and is held independently by the
individual without any claim from other members of the family. Yajnavalkya’s assertion emphasises
that property acquired by a coparcener through personal efforts or gifts, such as presents from friends
or wedding gifts, does not belong to the joint family estate. Additionally, property recovered or gained
through personal endeavours, including inheritance or knowledge acquisition, remains the exclusive
possession of the individual and is not subject to division among coparceners. This recognition of
separate property rights allows individuals within a joint family to maintain autonomy over assets
acquired through their own endeavours, safeguarding their interests within the familial and legal
framework of Hindu law.
The Mitakshara text defines the separate property as an acquisition without detriment to the estate of
either the father or the mother and by adding the words ‘without detriment to the father’s estate’ must
be read along with each mode of acquisition mentioned in the text.

There are the following incidents of separate property

1. The separate or self-acquired property of a Hindu exclusively belongs to him;

2. It makes no difference that he is joint;
3. Even his male issues do not acquire any interest in it by birth;
4. He may dispose of it in any manner he likes;

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5. It is not liable to partition, and on his death, it passes by succession to his heirs (if there is no
testament);
6. The rule of survivorship does not apply to self-acquired property.

The following kinds of property are separate property in the hands of a male Hindu:

1. Property, movable or immovable, acquired by inheritance from any person, male or female,
relation or stranger, provided such persons are not the three immediate male ancestors in
separate property of that person.
2. Property acquired by gift or will by a Hindu from any person, whatsoever, is his separate
property.
3. Property, which a Hindu acquires by purchase or otherwise, but not by means without the
aid of family funds or ‘without detriment to the father’s estate’, is his separate property.
4. Property acquired by a coparcener as his share as a partition of joint family property would
be separate property as far as the other members of the family are concerned.
5. Joint family property in the hands of the sole surviving coparcener would be separate as
long as there is no other coparcener born or adopted or having a child in womb.
6. Immovable property which a father recovers by purchase or otherwise and which property
previously belonged to the joint family, is separate property to the extent of one-fourth,
provided the fund of the purchase or acquisition has not been taken from the joint funds.
7. Property comprising ancestral movables obtained as a gift from the father out of affection,
provided that such gift is within a reasonable limit.
8. Property obtained by a Hindu under a grant from the government unless it appears that the
grant was made for the benefit of his family and not exclusively for him
9. Ancestral property which has been lost to the family and which has passed into the
possession of strangers and is recovered by a coparcener without the aid of other
coparceners and of the coparcenary.
10. Property held by a sole surviving coparcener, when there is no widow in existence who has
the power to adopt.
11. Gains from learning science.
12. Impartible property and savings from such property.
Distinction between Coparcenary Property and Separate Property
There are following differences between Mitakshara coparcenary and separate property.
i. Partition: A joint family property or coparcenary property is liable to be partitioned whereas
there can be no question of partitioning the separate property of a member of the joint Hindu
family.

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ii. Devolution: On the death of a coparcener his undivided interest in the joint family property
devolves by survivorship and not by succession. The separate property of a coparcener, on
the other hand, passes on his death intestate, to his heirs by succession and not by
survivorship to the remaining coparceners.
iii. Acquisition of interest by birth: In the coparcenary property the sons, son’s sons and son’s
son’s sons of a coparcener acquire an interest by birth but in the separate property of a Hindu
no other coparcener (even his own son) acquire any interest by birth.
iv. Nature of interest: All the coparceners have community of interest and unity of possession
in the joint family or coparcenary property. On the other hand, the separate or self-acquired
property of a Hindu belongs to him exclusively even though he may be a member of a joint
family.
v. Alienation by gift: A coparcener cannot alienate his undivided interest in the coparcenary
property by way of gift without the consent of the other coparceners. But separate property
can be gifted away by the owner to any extent and to any person.
vi. Alienation by sale or mortgage: No coparcener can alienate his undivided interest in a
coparcenary by way of sale or mortgage without the consent of other coparceners. This
general rule admits certain exceptions which may be described as under:
a. The karta of a Hindu Joint family can alienate by sale or mortgage a portion or even
the whole of the joint property for a legal necessity or for the benefit of the estate even
without the consent of the other coparceners.
b. If such karta is the father, he enjoys an additional power of such alienation for the
payment of his antecedent debts which were not incurred for illegal or immoral
purposes.
c. However, the separate property of his own can be freely alienated by a coparcener by
way of sale or mortgage or otherwise.
vii. Alienation by Will: No coparcener could dispose of his property by will, but there was no
restriction of this type in case of self-acquired property. However, now Section 30 of the
Hindu Succession Act, 1956 empowers a coparcener to dispose of his interest in the
coparcenary property by will.

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