• HINDU UNDIVIED FAMILY-

• MITAKSHARA JOINT FAMILY

• FORMATION AND INCIDENTS
• PROPERTY OF BOTH SCHOOLS
• KARTH- HIS POSITION, POWERS PRIVILEGES AND
OBLIGATIONS
• DEBTS
• DOCTRINE OF PIOUS OBLIGATION
• PARTITION AND REUNION
• RELIGIOUS AND CHARITABLE ENDOWMENT.
• HINDU UNDIVIED FAMILY:-
• JOINT FAMILY ORIGIN AND GROWTH
• The institution of the joint Hindu family is peculiar
and unique institution of the Hindus. It has its
origin in ancient texts and writings of smritikars.
The joint family system has in fact sprung from the
ancient patriarchal family which can be said to be
the earliest unit of human society.
• JOINT FAMILY – ITS NATURE AND CONSTITUTION.
• The joint and undivided family is the normal
condition of Hindu society. Since time immemorial
the Hindus are accustomed to live in joint-family
units.
• Thus an Hindu joint family ‘consists of all persons
lineally descended from a common ancestor and
includes their wives and unmarried daughters.
• A daughter ceases to be the member of her
father’s family on marriage, and becomes a
member of her husband’s family.
• Existence of property or possession of the property
is not an essential requisite to constitute a joint
family and a family which does not own property
may nevertheless be joint. Under the normal
circumstances a Hindu family is joint, not only in
estate, but also in food and worship.
• The Hon’ble Supreme court stated the
characteristics of Hindu Joint family.
• “Hindu joint family is thus a larger body
consisting of a group of persons who are united
by the tie of sapindaship arising by birth,
marriage or adoption.
• The fundamental principle of hindu joint family
is the sapindaship.
• Males:
• Those that are lineally connected in the male line
• Collaterals
• Relatives by adoption
• Poor dependants
• Son born out the marriage between a Hindu man
and Christian women under special marriage Act.
•
• Females
• The wife or the widowed wife of a male member,
and
• His maiden daughters.
•
• Binod Jena v/s Abdul Hamid khan [AIR
1975 orissa 159]
• The Orissa High court held that the leading
principle of Hindu Law is that in the absence
of proof of division, the presumption is that
every Hindu family is joint in food and in
worship and estate
• joint in food and worship and estate.
• The following are the leading presumptions which govern
the burden of proof in suit which involves questions as to
• whether a family is joint or separate
• whether particular property belongs to the joint family or
• should be treated as separate property of an individual
coparcener:
• Every Hindu family is presumed to be joint in food,
worship and estate: the burden of proof, therefore, lies
upon the person who alleges separation.
• The , members dwell and mess apart, and yet remain
joint in estate.
• A family once proved or admitted to be joint, is, in the
absence of separation, presumed to have continued
joint. There is strong presumption in favour of Hindu
brothers constituting a joint family.
• Where it is proved or admitted that a partition
has taken place and burden of proving that a
portion of the family property is still jointly,
is upon the person who alleges it.
• Where it is proved that a family is joint and
possesses joint property, the presumption is
that all the property in hand is still joint.
•
• If it is proved that the family lived jointly in one
house, and that there was a nucleus of joint
property of substantial value, the onus is on the
party setting up a case of separate estate.
• The affairs of a joint family are managed by the head
of the joint family who is called the manager or karta.
• The father if living would generally be the karta of
the joint Hindu family.
• He is the representative of the family and is consider
supreme in the management of the property.
• There is a presumption that senior most member would
be regarded as karta of the joint family.
•
• Every member of a Mitakshara joint family has
got certain rights, such as,
• The right to maintenance and residence.
• The right to have a partition.
• The right to call for an account as incidental to
the right
• The right to joint possession and enjoyment etc.,
• A hindu coparcenary is a much narrower body than a
joint Hindu family. It includes only those who acquire
by birth an interest in the joint or as, it is called
“coparcenary property”, these being the sons,
grandsons, and great-grandsons of the joint property
for the time being.
• Now even the daughter is also a coparcener according
to section 6 Hindu succession (Amendment )Act 2005.
• The essence of a coparcenary under the
Mitakshara, is community of interest and unity
of possession between all the members of the
coparcenary.
• Each coparcener is entitled to joint possession
and, enjoyment of the common property.
• The essence of the coparcenary being unity of
ownership, no individual member of the family,
while it remains undivided, can predicate of the
joint and undivided property that he has a
certain definite share.
• Thus, if a person inherits property from his
father, grandfather or great grandfather, his
sons, grandsons and great grandsons and
daughters of a Mitakshara coparcener acquire
an interest in it by birth and then they become
with him joint owners of the coparcenary
property with a right to demand partition of
the same and all of them are coparceners and
constitute a coparcenary.
• The Hon’ble Supreme court has laid down special feature of a
Mitakshara coparcenary given below.
• The Male descendants up to three generations from a common
ancestor, who acquire an interest by birth, constitutes a
coparcenary.
• These members of the coparcenary have right to demand
partition.
• So long there is no partition, each of the coparceners has
control over the entire property along with others.
• Their ownership and right of joint possession are common, on
account of co-ownership.
• There cannot be any transfer of the coparcenary property
unless the necessity of such transfer is proved and all other
members of the coparcenary give their consent to this effect.
• On the death of any of the coparceners, hid share devolves on
other coparceners by the rule of survivorship not be succession.
• Illustrations
•
• A
• _____________________________________________________________
_
•
• B C D1 D2
•
•
M N
• E F O P
•
•
•
• G H S T
• In the above illustration, during the lifetime of A, the male
holder in the family, B, C the two sons of A, D1 and D2 the two
daughters of A and E,F ,M,N the grandsons and G,H,O,P the
great-grandsons will constitute the coparcenary along with A.
In this case S and T are not coparceners because they are
removed from A beyond the three degrees. But as soon as A
dies, S and T are also included within the coparcenary.
•
• 1. UNITY OF OWNERSHIP:-
• The essential feature of a Mitakshara coparcenary property is
unity of ownership and community of interest. The ownership of
coparcenary property is in the whole body of the coparceners.
•
• 2. INDETERMINABILITY OF SHARES:-
• In a Hindu undivided family governed by the Mitakshara law,
no individual can predicate, while it remains undivided, that he
has a definite share in the property of the family
• 3.COMMUNITY OF INTEREST:-
• No coparcener is entitled to any special interest in the
coparcenary property, nor is he or she entitled to exclusive
possession of any part of the property.
•
• 4. DAUGHTER OF A COPARCENER MAY ALSO BE A
COPARCENER:-
• The Hindu succession (Amendment)Act, 2005 – has made a
daughter of a Mitakshara coparcener, a coparcener by birth as
if she were a son.
• 5.Right by birth:-
• The coparcenary property is a property in which the issue of
the coparceners acquire an interest by birth.
•
• 6. ABROGATION OF THE RULE OF SURVIVORSHIP:-
• The amendment act 2005 abolished survivorship
• WHEN DOES A COPARCENARY COMES TO AN END
•
• By partition
• By the death of the last surviving coparcener.
•
Sl.no JOINT FAMILY COPARCENARY

1 It is unlimited both as to the number of It is thrown open to only certain

persons and remoteness of their descent specified members of the joint
from the common ancestor. family.
2 Here there is no limitation of family A coparcenary is limited to males
members and females of the family who are
within the rule, of four degrees
inclusive of the ancestor or the
head of the family, for the time
being, while there is no such
limitation in the case of a joint
family
3 While a joint family continues even after A coparcenary comes to an end
the death of coparceners with the death of the last
coparcener or sole –surviving
coparcener.
A joint family is not necessarily a But a coparcenary is
coparcenary joint family or part of
one.
It consists of all persons lineally It is narrower, it
descended from a common ancestor includes only those
and includes their wives and person who acquires
unmarried daughters interest and right by
birth.
•
• It is divided into two classes,
• Joint-family property or “coparcenary
property” and
• Separate property or self- acquired property.
• It is the property in which all the coparceners have
community of interest and unity of possession. Such
property consists of-
• Ancestral property
• Property jointly acquired by the members of the
joint family.
• Separate property of a member “thrown into the
common stock” with the intention of abandoning all
separate claims on it;
• Property acquired by all or any of the coparceners
with the aid of joint-family funds.
• It is a specie of joint family or coparcenary property.
• The word ancestral property is meant that property
which descends from father, father’s father or father’s
father’s father.
• This is the only property in which his issues i.e., son,
grandson and great grandson and also daughter of a
Mitakshara coparcener acquire an interest with him by
birth.
• It is the property inherited by a male or female Hindu
from his father, father’s father, or father’s father’s father.
• It is very important to note that the only
property that can be called ancestral is the
property inherited by a hindu from any one
of his three immediate paternal ancestors
mentioned above and the only persons who
acquire an interest in it by birth are the sons,
son’s son and the son’s son’s son and
daughter of a Mitakshara coparcener.
• A business is a distinct heritable asset. Where a
Hindu dies leaving a business it descends like other
heritable property to his heirs.
• If he dies leaving male issue, such as sons,
grandsons or great-grandsons, the business goes to
the hands of the male issue and becomes joint-
family business and the firm which consists of the
male issue becomes a joint-family firm.’
• Now, daughters of a Mitakshara coparcener would
also become members of such family partnership.
• The manager of joint-family cannot start a new
business so as to bind the share of the other adult
coparceners, unless the business is started or carried
on with the express or implied consent.
• The income of the hereditary profession made
as that of a first constitutes joint-family property,
similarly any property acquired in exchange of
joint-family property would also be held to be joint-
family property.
• In case ancestral property is absolutely lost to
the family, and member of the family, by his
own exclusive exertions recovers it without
any aid from the joint funds, and with the
consent actual or implied, of the others , the
recoverer has certain special claims on the
property.
•
• Where property has been acquired by the
members of joint Hindu family by their joint
labour whether in a business, profession or
vocation with the aid of joint-family property,
it becomes joint-family or coparcenary
property.
•
• The Orissa High court has held that the
position in law appears now to be well settled that
when the members of a joint-family, by their joint
labour or in their business, acquired property that
property in the absence of a clear indication of a
contrary intention would be owned by them as a
joint family property.
• The Hon’ble Supreme court held that
properties having joint family nucleus till date of
severance in status must be deemed to be joint
family properties.
• But properties acquired by brothers after
severance in status cannot be clubbed into joint
family properties.
• A member of a joint-family may, under certain
circumstances, acquire property to hold it
exclusively as his own.
• But if the coparcener has voluntarily thrown his self-
acquired property into the joint funds with the
intention of abandoning all separate claims to it, it
would be joint property so as to be divisible among
all the members.
• Such an intention need not be express, it is sufficient
if the owner blends it as one general account
without discriminating between the two, in such a
way that a clear intention to waive his (or her)
separate rights may be established.
• The supreme court observed that 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 a joint family property if it is voluntarily
thrown by the owner into the common stock with the
intention of abandoning his separate claim thereto;

• But to establish such abandonment a clear intention to

waive separate rights must be established.
• Property acquired with the aid and the assistance of
joint-family property is also joint.

• Thus accumulations of income i.e. rent etc of joint

family property, property purchased out of such
income, the proceeds of sale or mortgage of such
property, and property purchased out of such
proceeds are also joint-family property.
• Where property is acquired by member of joint
family out of a business carried on by them,
there would be presumption that such property
is the joint property of the members though the
business may not have been ancestral or
started with nucleus of ancestral funds.
• What is self-acquired property?
• Property which is not joint is called separate or
self-acquired property.
• A hindu, even if he be joint, may possess separate
property. He is the sole owner of such property and
has exclusive possession and ownership over it.
• No other member of the coparcenary acquires any
interest in it by birth.
• Property acquired by a Hindu by his own exertion
and not by joint labour with other members of the
joint family, provided it is obtained without
detriment to joint family property.

• Property inherited by a Hindu from any

person other than his father, grandfather, or
great grand father.
• Property obtained by a Hindu as his share of partition
of a joint Hindu family, provided he has no issue.
• Property devolving on a sole-surviving coparcener,
provided there is no widow in existence who has
power to adopt or has a child in her womb.
• Property obtained by a Hindu by a gift or will, unless
made by his father, father’s father, father’s father’s
father for the benefit of the family and not exclusively
for himself.
• Property obtained by gift of ancestral movable
property made by the father through affection.
▪ Property obtained by a Hindu by grant from the
Government.
• Joint-family property lost to the joint family and
subsequently recovered by a member thereof
without the assistance of joint funds from a
stranger holding adversely to the family.
• “gains of science” or Gains of Learning i.e., income
earned by a member of a joint Hindu family
substantially means of his education or training.
• Marriage gift- all marriage gifts received by a
member.
• Income of separate property as given above.
• Income of joint-family property allowed to a
joint family member for his maintenance, but
no income from property the management of
which for purposes of convenience, has been
taken charge of by heirs.
• Benefits of insurance policy the premium
whereof has been paid out of joint family funds,
if the intention with which the premium
money given was to benefit the individual
member.
• The separate or self-acquired property of a
Hindu even if he be joint, belongs exclusively
to him. His issues acquire no interest in it by
birth. He may dispose it of in any way he
likes.
• It is not liable to partition, and on his death
intestate, it passes by succession to his heirs.
•
• A member of a joint family may acquire separate
property.
• But in such a case if it is found that the joint family
had sufficient nucleus which left sufficient surplus
income from which subsequent acquired properties
are also joint family properties.
• Now the burden of proof is upon the person who
claims a property has a separate property.
• A property in which a person acquires an interest
by birth is called unobstructed heritage.
• It is called unobstructed because the accrual of the
right to it is not obstructed by the existence of the
owner.
• A property, the right to which accrues not by birth
on the death of the last owner without leaving any
male issue, is called obstructed heritage.
• It is so called because the accrual of right to it is
obstructed by the existence f the owner.
• Thus property which devolves on parents, brothers,
nephews, uncle etc upon death of the last owner, is
obstructed heritiage.
• Who are coparceners?
• Coparceners are those persons who jointly inherit property,
whereof they have unity of possession, which, however may be
served at any time by partition.
• The co-heirs and their heirs also are called coparceners so long
as unity of possession continues.
• According to section 6 of Hindu succession (Amendment) Act
2005.
• The daughter,
• By birth becomes a coparcener in her own right in the same
manner as the son.
• Have the same right in the coparcenary property as she would
have had if she had been a son.
• Be subject to the same liabilities in respect of the said
coparcenary property as that of the son.
• 1. Rights of common possession and common enjoyment:-

• There is community of interest and unity of possession between

all coparceners.
• No one is entitled to special interest in the coparcenary
property.
• No coparcener has got a defined share in coparcenary
property, or in the income of the property.
• While the property is undivided , no one can predicate that he
has a certain definite share in the property in the family.
• Each coparcener is entitled to joint possession and enjoyment of
the family property.
• Every coparcener whether major or minor is entitled to call for
the partition of his share, even against his father and brothers
or the father and grand-father.
• A coparcener may restrain any unauthorized act of the other
coparceners property if such act interfere with the joint
enjoyment thereof.
• Ex. Erection of building , or wall or giving joint property in
security.
• a coparcener may demand an account of the management of
joint property so that he may know the actual state of family
funds.
• A coparcener may alienate his undivided interest in the
coparcenary by gift or mortgage or sale with the consent of the
other coparceners.
• Every coparcener has a right to set aside alienation made by a
father, manager or any other coparcener beyond his authority.
• A coparceners wife and children are entitled to be maintained
out of the coparcenary funds;
• The affairs of a joint family, consisting of generally
ladies and infants, cannot be managed by all the
members of it nor are they managed jointly by all
the adult male members, probably by reason of the
inequality in their rank.
• But ordinarily they are, by the consent of all,
managed by a single male member who is the head
of the family by reasons of his seniority and
superior rank.
• He is called manager or karta of the family.
• The father, if living would generally be the
manager or karta of the joint family.
• If father is not there the elder senior brother, if the
senior brother is away in a remote place and a
junior member can act has a karta.
• WHERTHER FEMALE CAN BE KARTA?
• After the Hindu succession (amendment) Act, 2005
daughter of a coparcener is a coparcener. Therefore
it is submitted that she may become a Karta,
provided she is a senior most coparcener.
• POWERS OF MANAGER [KARTA]
• The following are the general powers of karta
• POWER OF KARTA:-
• He has no larger proprietary interest in the family
property
• Larger rights to enjoy the same, than any other
coparcerner
• Not entitled to any remuneration .
• 1. Power over the income and expenditure
• He has the control over the income, expenditure and
surplus and he is the custodian of the same. He can
spend the income for the family ie, maintainance,
education, marriage , sraddha and other religious
ceremonies of the members of the family.

• 2. Power to manage joint-family business:-

• He has the power to manage joint-family business.
• 3. Power to contract debt for family purpose:-
• The karta has implied authority to contract debt.
• For the joint family purposes or’
• For a joint family business

4. Power to contract:-
• Relating to family business the karta is having the
power to contract, give receipts, compromising or
discharging contracts.
5. Power to refer to arbitration:-
• The Karta is having the power to refer matters of
Hindu family to arbitration. Coparcerners and
minors are bound by the award.

6. Power of compromise:-
• The karta is having the power to settle accounts
with the debtors and to make a reasonable
reduction either towards principal in the interest of
the family. But here the karta is having no power to
give up a debt due to the joint family and give up a
valuable item without any return or consideration.
• 7. Power to acknowledge debts:-
• The karta has power to acknowledge a debt or make a part
payment of it so as to extend the period limitation. But he
cannot execute a fresh promissory note or a bond as to
revive a time barred debt.

• 8. Power to give discharge:-

• The karta has power to give a valid discharge for debt due to
the joint family.
• 9. Power to represent in suits and other proceedings:-
• The karta may sue or be sued in respect of the
transaction entered by him as the karta of the family and
joint family property.
• The member are binding to the decree passed in favour
or against them.
• 10.Power to alienation :-
• It includes sale, gift, mortgage lease, or exchange. The
karta can alienate for value the Joint family property so as
to bind the interest of the other coparcener (minor/adults)
provided it is made .
• With the consent of all the coparcener in existence
• For legal necessity
• For the benefit of the estate
• CASE LAW
• SUNIL KUMAR VS. RAM PRAKASH [AIR 1988 SC
576]
• The hon’ble Supreme court held that the father
who is the karta can alienate the Joint Family
property for legal necessity no coparcener can
restrain him from doing so by filing a suit for
injunctions.
• If the coparcener thinks the sale is illegal he can
challenge the same afterwards.
• 1. Duty to render accounts:-
• Karta is bound to render accounts to the other
coparceners regarding his dealing with the joint
family property & the income thereof. He is not
responsible to show the accounts of his past dealing
unless there is proof of misappropriation. He is
liable to accounts at the time of partition only.
•
• 2. Duty to realize debt due to the family
• It is the duty of the Karta to make all possible
efforts to realize the debts due to the family.
•
• 3. Duty to spend reasonably:-
• Duty of the Karta to spend joint family funds
reasonably and for the purpose of the family.
•
• 4. Duty not to start new business without the
consent of other coparceners.
• It may impose risk upon minor and adults members
so consent of all members is required
•
• 5. Duty not to alienate coparcenary property
• The Karta shall not do so without the consent of the
family members and it shall be for legal necessity and
for the benefit of the estate.
•
• The doctrine of the pious obligation of the sons
to pay their father’s debt has been abolished by
section 6(4) of the Hindu succession (Amendment),
2005. Therefore, the law discussed in this respect
below is the prior law as it stood before the Hindu
succession (Amendment) Act, 2005.
• PIOUS OBLIGATION
• The doctrine of the pious obligation is that
obligation of the sons to pay their father’s debts.
• This doctrine was prevalent before the Hindu
Succession (Amendment )Act 2005.
• The hindu law maintains high sense of morality
as regards payment of debts as it is deemed
necessary for the salvation of the debtor’s soul.
• The sons, grandsons, great-grandsons are liable
to pay the debts of their ancestors if there are not
immoral debts or illegal purposes.
• NATURE OF LIABILITIES
• Religious
• Moral
• Legal
•
• The doctrine has its origin in Smritis. Non-
payment of debt is a positive sin, that evil
consequences of which follow the
undischarged debts even in the world
afterwards. An obligation is imposed upon
the sons to pay their father’s debts.
• Judicial decision has modified same aspects of
Pious obligation. Obligation of the son is not a
personal obligation. His obligation is confined to the
assets received by him in his share of the joint
family property. The obligation of son exists
whether the sons are major or minor, whether the
father is alive or dead.
• If the debts have been contracted by the father and
they are not immoral or irreligious the interest of the
sons in the coparcenary property can always be
made liable for such debt.
• The hindu son is not liable for debts contracted
by his father, which is Ayavaharika i.e, illegal,
dishonest or immoral.
• When does the liability of the son arises?
1. When the father’s debt is not immoral or illegal?
2. Both father and son is liable
3. It does not depend whether the father is dead or
alive
4. Immediately when the father fails to pay the debts
son’s liability arises.
5. Son’s liability is limited only to the son’s interest in
the coparcenary property.
• The son is under pious obligation to pay his father’s
debt which is “vyavharika” that is lawful and not
avyavaharika” that is unlawfull, illegal or immoral
incurred before partition i.e, when they were joint.
• The son is not liable for a debt contracted by father
after partition.
• There are many meaning to this word. Whether
a debt is immoral or not is to be judged with
reference to the time when it originated and the rule
is not rigid but has to be applied with reference to
the circumstances of each case.
• The sons, grandson and great grandson are not
bound to pay avyavahrika debt of the father.
• CASE LAW
• S.M.JAKATI VS. SM. BARKER [AIR 1959 SC
282]
• The supreme court observed that it is the
pious duty of the sons to discharge their
father’s debt not tainted with immorality or
illegality.
• Debts due for spirituous liquors
• Debts due for lust
• Debts due for gambling
• Unpaid fines
• Unpaid tolls
• Useless gifts or promises without consideration
• Promises made under the influence of lust and
wrath
• Commercial debts
• Any debts which is avyavaharika
• Surety ship debts
 SON'S LIABILITY

1. BEFORE AFTER PARTITION

PARTITION

1. FOR DEBTS
INCURRED BY 2. FOR PERSONAL
FATHER AS DEBTS OF THE
MANAGER OF THE FATHER
JOINT FAMILY
LIABILITY FOR THE DEBT CONTRACTED
BEFORE PARTITION
a. . Debts incurred by father as manager or karta of the joint
family for family purposes.
• The father , grand-father or great-grand father, as karta of a
joint family, has authority to contract debts for necessity or
benefit of the family and whole joint-family property including
the interest of the sons, grandsons and great-grandsons is liable
for the payment of that debt only.
• Thus the son, grandson or great-grand son are liable only to the
extent of their share in the coparcenary property.
•
• This liability of the sons exists today even after the Hindu
succession (Amendment) Act 2005.
• If the debt is incurred by the father for his personal
benefit, the son will be liable of the payment of the
debt provided the debt is not tainted will illegality or
immorality.
•
• This liability is limited to the son’s interest in the
coparcenary property and the whole family property
is not liable for the payment of the personal debts.
• The sons after a partition with the father are under
no legal liability to pay his debts contracted after
the partition.
• The son is, however liable after partition for a debt
contracted by the father before partition but only to
the extent of the share he has obtained on the
partition.
• The Liability of a son to pay the debts of his father exists,
whether the father is alive or dead.
• Thus, it is open for the father during his lifetime to effect a
transfer of any joint-family property including the interests
of his sons in order to pay off the “antecedent debt”
provided it is not tainted with immorality.
• For, when is such a case he alienates the property, which he
may be taken to exercise the power of alienation which the
sons would have exercised in discharge of their pious duty
which they owed him; he is virtually alienating the property
for them and on their behalf, in discharge of the duty.
• Antecedent debts:- something happened or existed before it
and was similar to it in some way.
• CASE LAW
• PRASAD V. GOVINDASWAMI [AIR 1982 S.C.84]
• The supreme court reiterated the well-established view that
the father may alienate the joint family property to pay off
his antecedent untainted debts and observed that he(the
father) must act prudently and if consideration in inadequate
the sale will not be valid.
• It literally means prior or preceding in point of time.
• But the word antecedent debt as used in Hindu Law
implies two things
• An antecedent in time,
• Antecedent in a fact in nature, that is to say, the
debt must be truly independent of and not part of
transaction impeached.
• Definition of antecedent debt.
• As an antecedent in facts as well as in time” that is
not a part of the transaction impeached.
• The two conditions are necessary:-
• The debt must be prior in time and
• The debt must be prior in fact.

• The antecedent debt to pay off in which an

alienation of the joint property is made must be
antecedent in fact as well as in time, i.e., the debt
must be truly independent and not part of the
transaction impeached.
• The father of a joint family may sell or mortgage joint-
family property including the son’s interest in the
property to discharge a debt contracted by him for his
‘personal benefit’ but it should, however, be noted that
in order to make an alienation valid, the following two
conditions should be satisfied.
•
• The debt for which alienation is made must be
antecedent in time.
• The debt must not have been taken for an illegal or
immoral purpose.
•
• MORAL OBLIGATION:-
• It is one’s moral duty to pay the debts of a person to whose
property one has succeeded as heir.
• He who inherits the estate of another must pay such other’s
debts.
• LEGAL OBLIGATION:-
• There is also a legal obligation to pay back the debt secured
by the father.
• CREDITOR’S SUIT:-
• The creditor may thus bring a suit in respect of the
personal debts of the father to recover his amount.
Such suit may be brought either -
• In the life time of the father, or
• After the death of the father.
•
• The suit may be filed against the father alone or
jointly against father and son and in execution of the
decree the entire joint-family property including the
interest of the sons may be attached and sold.
• The creditor is not bound to join the sons as parties to
the suit against the father.
• He may sue the father alone and obtain a decree against
him and he may execute the decree by attachment and sale
of the entire interest of the father as well as of the son in
the joint-family property and the sale will bind the son
though he was not made a party to the suit.
• But a son alone cannot be sued during the father’s lifetime
since his liability is co-existent with that of the father.
• BURDERN OF PROOF OF IMMORALITY OR ILLEGALITY
• This lies on the son to prove that the debts were tainted with
immorality or illegality.
• A distinct connection between the debt and the alleged immorality
must be proved.
• Showing that the father lived an extravagant and immoral life is not a
burden of proof.
•
ii. After the death of the father:-
• In cases where the father dies before the decree against him
has been fully satisfied, it may be executed by attachment
and sale of the entire joint-family property in the hands of
the sons, unless the debt was incurred for an illegal or
immoral purposes.
• TIME BARRED DEBTS OF FATHER AND SON’S LIABILITY TO
PAY.
• Time barred debt cannot be recovered, the sons are not liable
to pay their time-barred debts.
• But an agreement to pay even a time-barred debt is valid
according to section 25(3) of Indian contract Act.
• After the commencement of the Hindu succession
(Amendement) Act, 2005, no court shall recognize any
right to proceed against the son, grandson or great-
grandson for the recovery of any debt due from his
father, grandfather or great-grandfather solely on the
ground of the pious obligation under the Hindu Law of
such son, grandson or grandson to discharge any such
debt;
• Provided if the debt is contracted before the commencement of the
Hindu succession (Amendment) Act, 2005 noting contained in this
sub-section shall affect.

• The right of any creditor to proceed against son, grandson or

great-grandson, as the case may be, or

• Any alienation made in respect of any such debt, shall be

enforceable under the rule of pious obligation.

• Presently this doctrine has no place in Mitakshara law after the

commencement of the Hindu succession (Amendment) Act, 2005.
• According to Mitakshara Law
• Partition is the adjustment of diverse rights regarding
the whole by distributing them or particular portions of the
aggregate.
• Essentials ingredients of partition
• 1. Male members should express his clear wish for
partition.
• 2. Expression according to circumstances
• 3. The desire of partition must be noticed to all
members of the family
• 4. It is severance of the joint status
• 5. Every coparcener has right to claim partition
• 6. By partition the joint status comes to an end
resulting in putting the coparcenary to an end.
• it should be understood that coparcenary
property is liable to partition.
• Properties incapable of division and rule of partition
of such property.
• Impartibly property i.e. property which descends to
one member only, either by custom or under any
provision of law or by the terms of grant.
• Property indivisible by nature
• Family idols and relics which are object of worship.
• Separate property of a member
• From the properties which are liable to partition
provision must first be made for:-
1. Debts incurred for joint family which are payable
out of joint family property.
2. Maintenance of dependent females members and
disqualified heirs
3. Marriage expenses of unmarried daughters of the
last male holder but not of the collaterals.
4. Expenses for funeral ceremonies of the widow
and the mother of the last male holder.
• CASE LAW
• K.M. NARAYANAN VS. R.V. RANGANADHAN [AIR 1976
SC 1715]
•
• The supreme court stated that while dividing the family
estate the joint family should take account of both the debts
and assets and to make provision for discharge of debts.
1. Sons, grandsons ( also daughters of the coparceners)
2. After born sons ( & after born daughter of a coparcerner)
After born sons are of 2 sets
a. Those born as well as begotten after the partition
b. Those born after partition but begotten before it or those in
their mother’s womb at the time of partition.
3. Illegitimate sons:- an illegitimate sons among the 3
generation classes has no interest in property and cannot claim
partition but entitled to maintenance out of his father’s estate.
4.. Widows: she is not a coparcener but she is entitled
to share when the partition is made.
5. Alinee :- An alienee of coparcener’s interest
whenever such an alienation is valid has also a right
to partition.
• CASE LAW
• SMT. KAILASHPATI DEVI VS. SMT.
BHUWANESHWARI [AIR 1984 SC 1802]
• The supreme court has held that a purchaser of
the joint family property from a member of a Joint
family may have the right to file a general suit for
partition against the members of joint family.
• Female Sharers:-
• Wife
• Widowed mother
• Partenal grandmother
•
• Adopted children:-
• Adopted children are treated natural born child and they can
demand partition.
•
• The following are the rules for allotment of shares on
partition.
• 1. On a partition between a father and his children;
each child takes a share equal to that of his father.
• 2. When a joint family consists of brothers, they take
equal shares on partition.
• 3. Each branch takes per stirpes as regards every
other branch but the members of the same branch
take per capita as regards each other.
• 4. on the death of a coparcener leaving issue, his right
to share on partition passes to his issues, provided
each issue be within the limits of coparcenary, i.e
within the 4th degree from the common ancestor.
• FEMALE SHARERS:-
• The females, who take a share on partition are
• The wife
• Widowed mother.
• Widowed grandmother
• Daughter.
1. Partition by mere declaration to separate
2. Partition by notice
3. Partition by will
4. Conversion to another faith
5. Marriage under special marriage act 1954
6. Partition by agreement
7. Partition by arbitration
8. Partition by father
9. Partition by suits
• To constitute partition is a definite and unequivocal
indication of his ‘intention’ by a member of joint-family
to separate himself from the joint family and enjoy his
share in severalty.
• A severance of joint status may be effected by serving
a notice by a coparcener on the other coparceners,
including his intention to separate and enjoy the
property in severalty or demanding partition of the
property.
• Partition may be effected by a coparcener by making
a will containing a clear and unequivocal intimation to
his coparceners of his desire to server himself from the
joint family or containing an assertion of his right to
separate.
• Conversion to another faith:-

• Conversion of a coparcener to any other religion operates as

partition of the joint status as between him and other
members of the family.
• Marriage under special Marriage Act, 1954.
• Marriage of a hindu under the Special Marriage Act causes
severance between him and the other members of the
family.

• Partition by agreement.
• The agreement between the members of a joint family to
hold and enjoy the property in certain defined shares as
separate owner operates as partition, although the property
itself has not been actually divided by metes and bounds.
• Partition by arbitration:-
• An agreement between the members of a joint family
whereby they appoint an arbitrator to arbitrate and divide
the property operates as a partition from the date thereof.
• Partition by father:-
• The father may also cause the severance of the sons without
their consent.
• Doctrine of patria potestas (paternal power)
• According to this doctrine father can get the shares of his sons
fixes and also get them separated.
• But he does not have the right to get the joint family property
partitioned through the will.
• Although he could do the same with their consent.
• Partition by suits.
• The institution of a suit for partition effects severance of joint
family status and as such the mere institution of such a suit
effects immediate severance of joint status.
• EFFECTS OF PARTITON
• Joint status comes to an end
• Coparcenary also comes to an end
• Share is also determined
• Partition does not annul the family and other relation
• SUIT FOR PARTITION
• Who can sue for partition?
• 1. Every adult coparcener :- every coparcener [son/daughter]
is entitled to sue for partition and is entitled to have a share
on partition.
• 2. a purchaser of a coparcenary interest of a coparcener at a
sale in execution of decree- such a purchaser can demand a
partition.
• SUIT BY MINOR:-
• The Hindu law makes no distinction between a minor and major
coparcener so far as their rights to joint properties are
concerned.
• Hence, a minor is also eligible to file a suit for partition.

• VENKATA REDDI V/S LAKSHAMMA [AIR 1963 SC 1601]

• The court held that if a suit for partition by a minor, the
court will direct partition only if partition is in the interest of the
minor but that limitation arises not because of any peculiarity in
the estate of the minor but is imposed for protection of his
interest.
• Parties to the suit;-
• The following persons should be made defendants in a suit for
partition.
• 1.The heads of all branches.
• 2.females who are entitled to a share on partition, ex. Daughter
of a coparcerner, the wife, mother and grandmother.
• 3. the purchaser of coparcener’s interest, if any;
• 4. if the plaintiff himself is a purchaser from a coparcener his
alienor.

• All persons who are entitled

• 1.demand partition
• 2. to have a share on partition including female sharers
• 3. to have provision made for maintenance and marriage
• 4. alienees of undivided interest are necessary parties to a suit
for partition.
• The general rule is that partition once made cannot be re-
opened. But there are certain exceptions
• Cases where partition may be re-opened.
• A son conceived at the time of partition, though not born before
partition can re-open it if a share has not been reserved for
him.
• On the other hand if a son is begotten as well as born after
partition and if a share has been allotted to the father, such
after born is not entitled to have the partition re-opened and
same rule to daughter.
• A son begotten as well as born after partition can demand a
re-opening of partition, if his father entitled to a share has not
reserved a share for himself.
• A disqualified coparcener after the removal of disqualification
or a missing coparcener on his return can re-open the partition.
• A partition re-opened be minor coparcener on attaining the
majority if the partition made during his minority was unfair or
prejudicial to his interest.
• If a coparcener has obtained an unfair advantage in the
division the partition may be reopened for the readjustment of
shares.
• There is a general rule that re-union cannot happen.
• Exception:- re-union is, however an exception that a member
of a joint family once separated can reunite only with father,
brother or paternal uncle but not with any other relations.
• According to Mitakshara , dayabhaga – a re-union can only
take place between-
• 1.A father and sons;
• 2.Brothers; or
• 3.A paternal uncle and nephews, and any other re-
union, such as, between cousins, is invalid and
inoperative.
• EFFECT OF RE-UNION
• The effect of re-union is to revert the united members
to their status as members of joint hindu family.
•