FAMILY LAW II NOTES (SEMESTER VI)

 ORIGIN
The Hindu Civilisation is considered to be one of the oldest in the world. Trying to
trace the origins of Hindu Law can be an arduous task. However generally the three
sources of Hindu Law are considered to be:-
 The Shrutis - Primarily the Vedas.
 The Smritis - the memorised word
 Sadachara - Good Behaviour
These three were the sources of Dharma and Dharma in turn consisted of Religion,
Law and Morality.
However the starting point can be considered the Vedas which depict a civilised
society with well-established rules and regulations.

 MEDEIVAL/MODERN SOURCES

 Commentaries and Digests

 Customs
 Judicial Decisions
 Legislative Enactments

 Definition of the term ‘Hindu’.

Under the codified acts, it is both an inclusive and exclusionary definition.

In the Constitution of India, the word "Hindu" has been used to denote persons
professing any of these religions: Hinduism, Jainism, Buddhism or Sikhism.
On the other hand, Hindu Laws define Hindu as a person who is not a Christian,
Muslim, Parsi or Jew.
  SCHOOLS OF HINDU LAW

MITAKSHARA SCHOOL –
Origin
It literally means a ‘brief compendium’. It is an analysis of the Yajnavalkya Smriti by
Vijaneshwara as told to him by his Guru Visvarupa.
It was written in the latter part of the 11th century.
Hindu law under MITAKSHARA was divided into 4 sub schools.
 BENARES
 MITHILA
 DRAVIDA
 MAHARASHTRA

These schools acknowledge MITAKSHARA as the supreme authority but give

preference to specific treatises or commentaries from their own regions.
Over time, MITAKSHARA School was sub divided into several sub schools. But
these divergences merely supplement the principal work and do-not abrogate or
replace it.

DAYABHAGA SCHOOL-
Origin
It was written by Jimutvahana in the latter half of the 12th century. It is a part of a
larger work titled ‘Dharmaratna’.
Jimutvahana did not accept the propositions as laid down by the earlier commentators
and rather dealt with the subject of inheritance and succession with a direct approach.
He appealed to reason and logic and not merely to precedents and prepositions.
It was largely prevalent in Bengal and parts of Bihar and Orissa.

 HINDU JOINT FAMILY (HJF)

It constitutes of all the male members descended lineally from a common male
ancestor together with their mothers, wives or widows and unmarried daughters.
After marriage, daughters cease to be a part of the father’s joint family and become a
part of husband’s joint family.
If the daughter becomes a widow or is deserted and returns to her parental home, she
again becomes a part of the HJF.

MITAKSHARA JOINT FAMILY

It is founded on the existence of an undivided family as a corporate body.
Such a body with its joint heritage is a creature of law and cannot be created by acts or
contract by the parties.
The only exception being, a valid adoption where a stranger may be affiliated as a
member of that corporate family.
The head of the family is referred to as the ‘karta’ and he deals with the property on
behalf of all the other members of the joint family.
However his rights are limited and subject to the consent of all the other coparcener.
The Hindu Joint Family can continue in perpetuity. It does not end with the death of
all the male members in the family, as long as it is possible to add a male member.
Plurality is necessary for the continuation of Hindu Joint Family but plurality of male
members is not necessary.

DAYABHAGA JOINT FAMILY

It is distinct from the MITAKSHARA HJF on certain basic principles. It is based on
the principle of the willingness of all members to constitute a HJF and is not merely a
creation of law.
The last holder of the property has absolute rights to deal with the property including
sale, lease, mortgage or disposal thereto. No consent of the other members of the HJF
is required.
On the death of the absolute holder of the property, it is equally divided amongst all
his sons who own the property as ‘tenants in common’. However unlike in the
Mitakshara School, the share of each Coparcener in the joint family is well defined
and absolute. A valid adoption is also recognised under the Dayabhaga School of
Law. Under the DAYABHAGA School, female members can also be added as
coparcener and as representing the rights of the deceased husband.

VARIOUS INCIDENTS WITH RESPECT TO HINDU JOINT FAMILY

 1. Every HJF whether living together or separately would continue to hold
its joint status unless proved to the contrary.

Adiveppa V Bhimappa
(2017) 9 SCC 586
The dispute was between the members of one family, that is uncle, aunt and nephews,
pertaining to ownership and partition of agricultural lands. In this case the plaintiff
failed to prove the suit properties to be their self acquired properties.
It held that family once joint, presumed to be so unless there is an evidence of
partition or separation.
The SC, dismissed appeal of plaintiff and held that all assets pertaining to HUF are to
be treated as joint property of the HUF, unless contrary is proved such as self
acquisition of property, through valid documents.

2. CONTINUANCE OF HJF in the case of survival of a single male

member.

Commissioner of Income Tax V Gomedalli Laxmi Narayan

AIR 1935, Bom 412
The question that arose in the aforesaid case was whether the Hindu joint family can
continue at the behest of a sole surviving male member. Also in such a scenario
whether the income under the Joint Family Account shall be computed as the Karta or
as a separate individual.
The court made a distinction between a Coparcener and Karta under the HJF. Whereas
presence of At least 2 members required to constitute the coparcenary, a single
member can continue as the karta of the HJF. Also even a sole surviving member of
the HJF does not always have the absolute right to dispose of the property. Various
rights of the other family members like the widow’s rights to maintenance and right of
unmarried daughters to residence need to be taken into account.

BHAGVAT SHARAN V PURUSHOTTAM

AIR 2020 SC 2361
It was observed that the burden of proof lies on the person alleging that the property
belongs to the HJF and was purchased through the funds of the joint family nucleus.
It is important to prove not only the common nature of the property, but also the
burden lies on the person claiming the presence of a Hindu Undivided Family (HUF)
to prove that the property belongs to the HUF, unless there is evidence on record that
the property is the nucleus of the HUF or that it has been acquired by means of funds
coming from that nucleus.
Referring to the facts on the record, the bench said that there was no information on
the record to prove that the property belonged to the HUF. They may have been
common properties but, simply on the basis of the recitals in the mortgage deed, it
cannot be assumed to be a joint family property, he added.
The Court also observed that, simply because the business is joint does not increase
the inference that there is a joint Hindu family.
The source of funds has been treated as a strong evidence in making a distinction
between HJF property and separate property.

PARAMJIT ANAND V MOHAN LAL ANAND

AIR 2019 (NOC) 133 Del.
The property in question was purchased from the Ministry of Rehabilitation towards
ancestral property sold in Pakistan. The Court held that to determine the nature of the
property, the source of funds used to purchase the property are important.

4 CONTINUATION OF HJF AT THE INSTANCE OF ONLY FEMALE

MEMBERS
The term ‘continuation’ suggests the pre-existence of HJF in the past and maintenance
of the same in the present.

BHARATH KUMAR V CIT

1993 199 ITR, 190
TEST OF POTENTIALITY
After the death of the last male member as Coparcener, the test laid down by the apex
court was the potentiality of the widows to bring a male member into existence by
law.

ATTORNEY GENERAL OF CEYLON V A R ARUNACHALAM CHETTIAR

(1957) 34 ITR, Supp. 42
In the present matter the father and the son formed a Hindu Joint Family under the
Mitakshara School. They were domiciled in India but had business interest in Ceylon.
The son died in 1934 leaving the father as the sole surviving coparcener. There were
female members in the HUF. The question to be decided was whether the estate of the
family should be treated as separate property or Joint Family Property as the property
being an HUF property was exempt from estate duty. In 1938 the father also died.
The court held that all female members of the HUF continued to have the right to
maintenance out of the said property. They also had the option of adding male
members through adoption. It was held that the HJF was already in existence and
continuity could be preserved after the sons and fathers death through the right of
adoption of the widows.

5 CAN HJF BE CONTINUED ONLY BY DAUGHTERS

BEFORE 1956
The unmarried daughters did not have the capacity to add a male member to the
father’s joint family. However she had the right to maintenance out of the said
property. But once only unmarried daughter was left, before 1956 under the
Mitakshara School, the HJF would end.

Post 2005 Amendment

The daughters have been added as coparceners under the Hindu Succession Act and
thus HJF of the father can be continued at the behest of only daughters.
S 57(3) of the HMA
Single woman can adopt a child and in such a case the child’s lineage will be traced to
her father’s family. The adopted child will also be added to the father’s joint family.

 DISTINCTION BETWEEN HINDU UNDIVIDED FAMILY

AND JOINT HINDU FAMILY
 TAKE FROM SCANNED PAGES ATTACHED IN THE FILE
HERETO

 COPARCENER UNDER MITAKSHARA SCHOOL OF LAW

Incidents of Coparcener under MITAKSHARA School

TAKE FROM PAGES 23- 27 OF SC JUDGEMENT IN
REVANSIDAPPA AND ANR
V
MALLIKARUJUN AND ORS, 2023

Also refer to the cases mentioned therein:-

1. STATE BANK OF INDIA V GHAMANDI RAM - (1969) 2 SCC 33
2. CONTROLLER OF ESTATE DUTY, MADRAS V ALLADI
KUPPUSWAMY - (1977) 3 SCC 385
3. STATE OF MAHARASHTRA V NARAYAN RAO SHAM RAO
DESHMUKH - (1985) 2 SCC 321
4. VINEETA SHARMA V RAKESH SHARMA (2020) 9 SCC 1
  COPARCENER UNDER DAYABHAGA SCHOOL OF LAW
TAKE FROM THE SCANNED COPY