Kalinga University

Department of Law

Course-BA LLB
Subject- Family Law-II
Subject Code – BALLB401 SEM.-IV

Unit 1

Schools of Hindu law

Schools of Hindu law are considered to are the commentaries and the digestives of the smritis.
These schools have widened the scope of Hindu law and explicitly contributed to its
development.

The two major schools of Hindu law are as follows-

 Mitakshara
 Daya Bhaga

Mitakshara

Mitakshara School: Mitakshara is one of the most important schools of Hindu law. It is a running
commentary of the Smriti written by Yajnvalkya. This school is applicable in the whole part of
India except in West Bengal and Assam. The Mitakshara has a very wide jurisdiction. However
different parts of the country practice law differently because of the different customary rules
followed by them.

Mitakshara is further divided into five sub-schools namely

 Benaras Hindu law school

 Mithila law school
 Maharashtra law school
 Punjab law school
 Dravida or madras law school

These law schools come under the ambit of Mitakshara law school. They enjoy the same
fundamental principle but differ in certain circumstances.

Benaras law school

This law school comes under the authority of the Mitakshara law school and covers Northern
India including Orissa. Viramitrodaya Nirnyasindhu vivada are some of its major commentaries.

Mithila law school

This law school exercises its authority in the territorial parts of tirhoot and north Bihar. The
principles of the law school prevail in the north. The major commentaries of this school are
Vivadaratnakar, Vivadachintamani, smritsara.

Maharashtra or Bombay law school

The Maharashtra law school has the authority to exercise its jurisdiction over the territorial parts
including Gujarat Karana and the parts where there is the Marathi language is proficiently
spoken. The main authorities of these schools are Vyavhara Mayukha, Virmitrodaya, etc.

Madras law school

This law school tends to cover the whole southern part of India. It also exercises its authorities
under Mitakshara law school. The main authorities of this school are Smriti Chandrika,
Vaijayanti, etc.

Punjab law school

This law school was predominantly established in east Punjab. It had established its own customs
and traditions. The main commentaries of this school are viramitrodaya and it established
customs.
Dayabhaga school

Dayabhaga school predominantly prevailed in Assam and West Bengal. This is also one of the
most important schools of hindu laws. It is considered to be a digest for the leading smritis. Its
primary focus was to deal with partition, inheritance and joint family. According to Kane, it was
incorporated in between 1090-1130 A.D.

Dayabhaga school was formulated with a view to eradicating all the other absurd and artificial
principles of inheritance. The immediate benefit of this new digest is that it tends to remove all
the shortcomings and limitations of the previously established principles and inclusion of many
cognates in the list of heirs, which was restricted by the Mitakshara school.

In Dayabhaga school various other commentaries were followed such as:

 Dayatatya
 Dayakram-sangrah
 Virmitrodaya
 Dattaka chandrika

What is the difference between Mitakshara and Dayabhaga school?

The difference in relation to the joint property

1. Under Mitakshara school right to ancestral property arises by birth. Hence the son becomes
the co-owner of the property sharing similar rights as of fathers. While in Dayabhaga school the
right to ancestral property is only given after the death of the last owner. It does not recognise the
birth right of any individual over an ancestral property.
2. Under the Mitakshara school the father does not possess the absolute right to alienate the
property but in daya bhaga the father has absolute right of alienation of the ancestral property as
he is the sole owner of that property during his lifetime.
3. Under Mitakshara school the son attains the right to become the co-owner of the property he
can ask for the partition of the ancestral property even against the father and can demand for his
share but in case of Dayabhaga school son has no right to ask for the partition of ancestral
property against his father.
4. Under Mitakshara school the survivorship rule is prevalent. In case of the death of any
member in the joint family, his interest shall pass to other members of the family. While in case
of Dayabhaga school the interest of the member on their death shall pass on to their heirs like
widow, son, daughters.
5. Under the Mitakshara school the members can’t dispose of their share of property while
undivided while in daya bhaga the members of the family enjoys absolute right dispose off their
property.

The difference as regards to inheritance

 Under Mitakshara the rule of blood relationship or consanguinity is followed in case of

inheritance whereas in case of Dayabhaga school the inheritance is governed by the rule of the
offering of pinda.
 Under Mitakshara school the cognates are postponed to agnates or not preferred upon agnates
while in case of Dayabhaga cognates are preferred upon the agnates.
 Mitakshara school expanded its recognition to a very limited extent in regards to the
recognition of the doctrine of factum valet but Dayabhaga, on the other hand, has expanded it
recognition to the full extent.
 Under the Hindu law the difference between the Mitakshara school and the Dayabhaga
school is not recognised as in the present scenario there exists one uniform law of succession for
all the Hindus.

The doctrine of factum valet

The doctrine of “factum valet quod fieri non debuit” means what ought not to be done becomes
valid when done. This principle was formulated by the authors of the Dayabhaga school and was
recognised to a limited extent by the followers of the Mitakshara school. The doctrine of factum
valet states that once an act is done or a fact is accomplished it can’t be altered by the written
texts of laws. As the fact is considered to be a concrete establishment and is deemed to be legally
binding.
What is a Joint Hindu Family?

Joint Hindu Family is an inevitable and fundamental concept of the Hindu family law which in
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
the 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.

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 Rukhmabai v. Lala LaxmiNarayan; Rajagopal v Padmini.
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 Ors. v. Jhandey Lal and Anr. It is a unit and
is represented by the Karta of the family in all matters.

Composition

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

Beginning

It is pertinent to note that without a common ancestor Joint Hindu Family cannot be brought into
existence. The presence of a common ancestor is a necessity for its beginning, but it is not
necessary for its continuation i.e. the death of the common ancestor does not bring the Joint
Hindu Family to an end. Upper links of the family are removed and lower links are added by
marriage, birth, or adoption of the child in the marriage. This process continues as long as it does
not become extinct. The members are bound by the fundamental principle of Sapinda
relationship(belonging to the same ancestors, up to three and five lines of ascent from mother’s
and father’s side, respectively) or family relationship.

Exit

The status of being a part of the Joint Hindu Family can be ceased in the following cases:

 By conversion to another religion or faith.

 By marriage to a non-Hindu(a person who is not Hindu as per Section 2 of the Hindu
Marriage Act, 1955 which include a Muslim, Jew, Parsi or Christian by religion).
 By being given in adoption to a third party by the competent parents.
 By marriage of a daughter.

Important points

 Position when there is only one male member in the family

In such a case the Joint Hindu family can still continue to function as the requirement of a male
member is essential to start a Joint Hindu family and not for its continuance. It is not necessary
to have at least two or more male members in the family to make it a Hindu Undivided family as
a taxable entry. In the case of CIT v. Gomedalli Lakshminarayan it was held that even if the
coparcenary does not exist in a family still that family continues to be a Hindu Undivided family.

 Position when there are only female members (widow)

On the death of the sole male member, a joint Hindu family can continue to exist at the instance
of already existing female members of the family. The term ‘continuation’ is different from
starting or forming a joint family for the first time.
In the case of CIT v. Sarwan Kumar, the Supreme Court held that on the death of the last
surviving male member, the other family members can continue to be a Joint Hindu family, even
if they are not coparceners. The death of the male member is a self declaratory fact that there was
an existence of male members in the joint family.

The court in the case of Attorney General of Ceylon v. Arunachalam Chettiar held that as per the
law, so long as the female members of the family can add a male member to the family, a joint
family does not come to an end.

Illustration:

 If A and B are brothers, C and D are wives of A and B respectively. Four of them together
constitute a Joint Hindu family.
 If A and B die in a car accident then also, C and D can continue the Joint Hindu family
provided, if either of them is already pregnant with the child of their husband or if they decide to
adopt a male child.

Therefore, the test laid down is the potential of the female members to add a male member to the
family either by natural means or lawful means as observed in Ashok Kumar Ratanchand v. CIT
also.

 Position when there are only daughters

Before the Hindu Adoption and Maintenance Act, 1956:

As discussed above that female members should have the capacity to add a male member in
order to continue the Joint Hindu family. However, before 1956 daughters did not have the
capacity to add a male member to her father’s joint family. The reason being that she could give
birth to a legitimate child only after her marriage, and once she is married she becomes a part of
her husband’s joint family and ceases to be a part of her father’s joint family.

After the Hindu Adoption and Maintenance Act, 1956

The Act gave power and permission to even a single woman to adopt a child. As per law, the
status of an adopted child is the same as that of a child born into the family. Now, the woman
could add a male member to her father’s Joint Hindu family without getting married. Therefore,
an adopted child can be maintained by a single parent also.

After the 2005 amendment in the Hindu Succession Act, 1956

The amendment to the Act gave the right to a daughter to be a coparcener and now she can not
only continue the Joint Hindu family but also constitute one with her father and brothers.

 Position when there are only husband and wife

As there is a chance of adding a male member or basically a coparcener to the family by the
couple, therefore they can constitute a Joint Hindu Family. There is a conflict in the judicial
opinion on the question, whether husband and wife can form a joint family as per revenue
statutes to take advantage of the exemption from tax as Hindu Undivided Family?

In the case of T. Srinivasan v. CIT, a partition took place in a Joint Hindu Family and the son
took his share. For a certain while, he filed his returns as an individual until he got married. The
question came into consideration when his wife was pregnant. It was held that only when the son
is born, he becomes a member of the joint family.

In Surjit Lal’s case, it was held that the property which a coparcener obtains on the partition does
not become for all times his individual property. If he is married he has an obligation to maintain
his wife. If he has children then he is obligated to maintain his unmarried daughter and minor
son. If a son is born he is entitled to a share in ancestral property. The court also held that the
absence of a history of jointness between a man and his ancestors should not cause any problem
in forming a Joint Hindu family with his wife.

It is the duty of the husband to maintain his wife as per Section 18 of the Hindu Adoption and
Maintenance Act, 1956. The wife can, therefore, claim maintenance from the husband’s separate
as well as ancestral property.
Thus the individual while receiving property on partition and getting married with no son or no
children at all is considered as the Karta of the Joint Hindu Family.

To conclude a husband and a wife can constitute a Joint Hindu Family as well as Hindu
Undivided Family.

What is Coparcenary?

The term ‘Coparcenary’ is used in matters related to Hindu Succession law. It is a narrower part
or institution within a Joint Hindu Family, It deals with property related matters only i.e. the
coparcenary property of a Joint Hindu Family

Composition

Unlike the Joint Hindu Family, coparcenary consists of all male lineal descendants up to three
generations from the last holder of the property. Senior-most member is called the ‘last holder’
and from him up to three generations i.e. son, son’s son, and son’s son’s son constitute the
coparcenary. There can be any number of male members in a particular generation.

Every member of the coparcenary is related to each other either by blood or valid adoption. It is
a laid rule that no person can become a coparcener by marriage or any agreement to become a
coparcener as coparcenary is a creation of law as observed in Sudarshan v. Narasimhulu. As per
the Hindu Succession Act, 1956 no female member could be a coparcener but it was later altered
with 2005’s amendment to the Act. Now, Section 29A of the Hindu Succession Act provides that
a female is entitled to receive the same share in the coparcenary property as that of a son.

Beginning

Like a Joint Hindu Family, the presence of the senior-most male member is compulsory to start a
coparcenary. The presence of at least two male members is necessary to constitute and even to
continue a coparcenary. Just like a Joint Hindu Family, in a coparcenary, upper links are being
removed subsequently, and lower links are added to the chain, provided there are at least two
male members(coparceners) maintaining the status of a joint family.
A male member within the three generations from the last holder of the property(total four
generations) becomes a coparcener right from his birth i.e. it is a ‘right by birth’ in the family
property.

End

Coparcenary comes to an end either by the partition or by the death of all the male members of
the family or the sole surviving coparcener.

Important Points

 The existence of property is a must in a coparcenary. If someone acquires his father’s

property during his lifetime, after his death that particular property will be inherited by his son as
Joint family property and this will be continued further.
 Before 2005, only males had the right to be a coparcener.
 An insane son is also a coparcener but does not have a right to ask for partition.
 Rule of survivorship applies to the coparcenary property i.e. when a coparcener dies his
interest in the joint family property devolves on the surviving coparceners and not by the rule of
succession. Since there is a continuous addition and deletion of coparceners by birth and death
respectively, therefore there is a fluctuation of interest in the property of every coparcener.

Illustration: ‘A’ has two sons- B and C.

 In the case of a partition, they will get one-third share each.

 If ‘B’ dies, then the share of ‘A’ and ‘C’ will enlarge and become one-half each as the share
of ‘B’ also gets divided between the rest of the Coparceners.
 Now, if two more sons ‘D’ and ‘E’ are born to ‘A’ and if now partition takes place among A,
C, D, and E, then each will get one-fourth share of the property.

 Just like there can be more than one coparcenary within different branches of a family,
likewise, there can be coparcenary within a coparcenary.

Illustration:
 A has three sons- B, C, and D. A is the last holder of the property.
 If C and D have their separate property and one son is born to C and two sons to D. The sons
of D (and C) will get birthright not just in the ancestral property headed by A but also in the sub-
coparcenary that is formed between sons of C and D.

In the case of Moro Vishwanath v. Ganesh Vithal, the court held that a partition can be
demanded only by one more than four degrees from the acquirer but it cannot be demanded by a
person who is at one more than four degrees removed from the last owner. The reason behind
this is that the coparcenary extends to four degrees from the last owner. The Court explained the
concept with certain illustrations, which are as follows:

 Illustration 1:

o If a family consists of A, the original owner and his lineal descendants are- B (son), C
(grandson), D (great-grandson). D has two sons- E and F, E further has two sons.
o If B and C die for instance, in a car accident. Neither E and F are still not entitled to ask for
partition nor can they sue their father for the partition.
o Now, if A also dies they can ask for partition as now they lie within the category of
coparceners.

 Illustration 2:

o If a family consists of A, the original owner and his lineal descendants are- B (son), C
(grandson). C has two sons- D1 and D2, D1 further has two sons- E and F. E also has a son G.
o If B and C die for instance, in a car accident. After them D1 also dies, then the two sons of
D1(E and F) and a grandson(G) cannot ask for partition because the property is inherited by D2
alone.

Point of differences

Illustration:
 If A, B, C, D, E, F, G, H and I are lineal male descendants with ‘A’ being the last holder of
the family property.
 People of all the 8 generations together constitute a Joint Hindu Family whereas till the time
A is alive from him up to three generations, a coparcenary is formed i.e. A, B, C, and D are
coparceners.

Joint Hindu Family Coparcenary

It is a wider institution as it includes all-male

It is a narrower institution as it includes only
lineal descendants from a common ancestor, it
three male lineal descendants from the last
also includes their wives and unmarried
holder of the property.
daughters.

There is a four-generation rule i.e. males

There is no limitation of generations, it can
within four generations from, and inclusive of
extend to any number of generations.
the eldest member of the family.

Only males can be coparceners and after

Every family member can be part of it
2005’s amendment daughters were given the
including females and illegitimate sons.
right to be a coparcener.

Even after the death of all coparceners or male

members, it does not ipso facto mean that Joint
Coparcenary comes to an end when all the
Hindu Family has come to an end. As long as a
male members or coparceners die.
female member has the right to add a new male
member to the family, it continues.

In a Joint Hindu Family, the existence of In a Coparcenary, the existence of property is

property is not essential. very essential.

The rights and interests of the joint family Rule of survivorship is followed and not the
members are determined by the Law of law of succession as on the death of a
Succession. coparcener, his interest in the property
 devolves on surviving coparceners.

The rights of coparceners are very wide, viz,

Members have limited rights, viz, of Right to partition, and right to alienate. Each
maintenance and marriage expenses of the coparcener is the owner of the entire property
unmarried daughters. but no one can set up an individual title to
any part of the property.

Every Joint Hindu Family is not a coparcenary. Every coparcenary is a Joint Hindu Family.

Situation after the 2005 Amendment

The amendment to the Hindu Succession Act of 1956 in the year 2005 was seen as a remarkable
step towards eradication of gender inequalities and bringing gender and social parity. The most
significant amendment was the abolition of Doctrine of Survivorship and providing the right to
daughters whether married or unmarried to be a coparcener and have a right by birth in the joint
family property. Section 6(1) of the Hindu Succession Act, 2005 provides that in a daughter of a
coparcener brought up as per Mitakshara school shall have:-

 Right by birth to become a coparcener in her own right in the same way as a son. Marital
status of a daughter does not matter.
 Same rights as that of a son in the coparcenary property.
 Same liabilities as of that of a son with respect to the coparcenary property.
 Any sort of reference to Mitakshara coparcener shall also include a reference to the daughter
as well.

Conclusion

The concepts of Hindu law were earlier based on the mindset favoring the patriarchal society
including the concept of coparcenary, Karta, etc. Coparcenary is considered as a sub-part of the
main concept of the Joint Hindu family. With the advent of time and especially with the
enforcement of the Hindu Succession Act, 2005, the legislature tried to bring the women at par
and to an extent overcome the patriarchal approach