Open Access Research Article
Legal analysis of the position of property and income of coparceners in a joint family as per the Hindu Law (By- Sai Pranav)
Abstract
Legal analysis of the position of property
and income of coparceners in a joint family as per the Hindu Law
Authored By- Sai Pranav
Abstract
Hindu
Law concerning coparcenary in a joint family and property related laws are
vast. These laws have existed for time immemorial and traces can even be found
in the scriptures and writings of learned scholars which are centuries old in
itself. With its wide application and vast area of governance often times there
are a number of questions that is posed to the judiciary and to the lawmakers,
as these set rules and laws are constantly evolving. The legal questions that
this paper shall seek to answer is whether (i) the position of income of the
coparceners evolved in application for the better over the years (ii) will also
identify those crucial factors that determine and influence the position of
such income of the coparceners, and (iii) lastly, this paper will also
elaborate on the approach adopted by the judiciary in classifying property into
separate property and joint-family property. The main objective of this paper
is to remedy the ambiguities or inconsistencies which arise in matters relating
to the income of the members in a joint family and to concisely explain the
approach of the judiciary in determining self-acquired property and joint
family property with the help of relevant case laws. This paper shall try and
encapsulate the significance of the interpretations by the courts over
different time periods and will give a clear understanding of the application
of the various rules and laws concerning joint family property and income. This
paper will establish the status of salaries and remuneration of the coparceners
in a joint family under modern Hindu law and will also answer the question of
whether the property purchased by the members amount to self-acquired property or
part of the joint family property itself.
Key
words - Joint Family property,
salaries and remuneration, income, coparceners, self-acquired property and
ancestral property
Introduction
A Hindu
Joint Family
- Traces its decent to a common male ancestor. The
existence of this ancestor is immaterial.
- Hindu Joint Family can be continued even if
discontinued at any point of time. Requirements for continuance is - the
existence of people living together (common dwelling) and is sharing of a
common ancestor.
- Male lineal descendants up to any generation
along with their wives/widows constitute a joint family – can be up to any
generation, there is no requirement of third or fourth generation as such,
even the first generation can be categorised under a joint family.
- There can be a joint family even with no male
members, as long as there is a possibility of addition of any male member
which can further the existence of a joint family coming into picture.
Example – adoption, future son-in-law…
- Even adopted male members are members of joint
family
- Unmarried daughters, widowed daughter-in-law’s,
widowed daughters are members of joint family – some scripts allow the
widowed daughters or daughter-laws, whereas some don’t.
- No legal entity distinct and separate from
members – Joint family’s are not a separate body corporate. It is not a
legal entity in this sense.
- A unit of members – headed by Karta
- Membership is by virtue of birth (except
adoption) and not by virtue of any agreement – in which case it becomes a composite
family.
- Illegitimate son can also be a member, but there
are certain limitations on the rights
- When it comes to a Hindu Joint Family, there is a
presumption of jointness, until and unless proved otherwise – presumption
of jointness in every Hindu family. This is a normal characteristic.
- Existence of a joint property is not a
determining factor – not a sole determining factor
Incidence
of Coparcenary:
- Coparcenary – the term implies joint ownership of
property
·
Coparceners – are
the people who together form or constitute coparcenary
- Under the traditional law of coparcenary, only
the male members are seen as members or coparceners who constitute
coparcenary
-
These male
members acquire the right by earth
-
More the number
of coparceners, lesser the interest(ownership) & vice versa
-
Example - suppose
A & B are brothers who are coparceners and C& D are the sons of
A, then, C
& D not only are entitled for the property of A, *but, as per the
Mitakshara (traditional scripture view on coparcenary) the property will be
shared equally amongst all A, B, C and D - 1/4th of property to all.
- If any coparcener decides to separate and take
his share of property, then on the consensus of the other coparceners,
property can be divided to that particular member and, this member upon
division or separation shall no longer remain a part of the joint family.
·
A coparcener can
object to any alienation of property done without his consent. Alienation is
difficult in the traditional Mitakshara view, as no coparcener can take a sole
decision of separation.
- In a coparcenary, there is a community of
interest and unity of possession. Each and everything is
jointly/collectively owned and enjoyed, no single member is entitled to
the sole enjoyment
- An adopted son can be a coparcener, but an
illegitimate child cannot be a coparcener although he may be a member of
the joint family, as per the traditional laws
- A person who is of unsound mind can also be a
coparcener. He cannot seek alienation on his own.
In
order to have a thorough understanding of the status of salary and remuneration
of the family members in a joint family under the Hindu law, we must look into
the various other subjects that have relevance with our topic. Therefore, it is
important that we also brief the readers about the classification of property
under the Hindu Law, and howthe income of the coparceners is directly related
to this classification (ancestral and separate). The necessity to familiarise
ourselves with the status prior and after is essential in order to have a
complete picture of the development. The status of income of the family members
in a joint family has undergone an evolution on its own.
Before
the Hindu Succession Act came into picture, the joint family income and the
joint family property was governed by a totally different set of rules and
procedures. Dwelling further into the way in which it was viewed, it is clearly
visible that there is a massive difference in ideology and the whole approach
by the judiciary in itself was different.
The Classification Of
Property Under The Mitakshara Laws Of Inheritance Are As Follows:
Property
traditionally was classified into two different categories –
- SapratibandhDaya[obstructed heritage] – There is some obstruction to
it, and the inheritance to the property is not ‘ipso facto,’ it does not
devolve automatically. The type of property will determine the obstruction.
It is basically, a type of property which is transferred by way of gift or
inherited by persons other than male ancestors or other than paternal
ancestors, which gives rise to an obstruction. Inheritance is not
unconditional. Example – property inherited by A from A’s mother’s father.
The son of A cannot inherit this by birth.
- ApratibandhDaya [unobstructed heritage]– It is one which is inherited
by a Hindu male from a direct male (paternal ancestor). Example – F, FF,
FFF, S, SS, SSS. The three-generation rule/four degrees of relationship
comes under this category. This is a right
acquired by birth by virtue of him being a male. The
father/grandfather cannot alienate the property of the son/grandson, against
the disadvantage of the son/grandson. There has been a difference of opinion
w.r.t the property of maternal father/uncle. Strictly looking in the Mitakshara
system, it does not include property of maternal ancestors. Ancestral property
comes under the category of ApratibandhDaya
Self-acquired properties are considered to come under the category of
SapratibandhDaya. In the Mitakshara system by Vijnaneshwara, the commentary
explicitly mentions that ‘we do not give up to the co-heirs, what has been
gained by him through science, by reading the scripture or by expounding the
meaning.’[1]Yajnavalkya
mentions that, ‘whatever has been acquired by the coparcener himself without
detriment to the fathers estate, as a present from a friend or a gift at
nupitals, does not devolve to the co-heirs nor shall be who recovers hereditary
property which has been taken away – give it up to coparceners nor what has
been gained by science.’[2]
Gains from learning under the Mitakshara law is also
known as ‘Katayana.’ The Katayana enumerates certain steps which were later
recognised as gains from learning of an individual. They are;
-
By proving
superior learning
-
Or gained
something or obtained from a pupil, officiating as a priest, display of
knowledge or debates[3]
-
Earning through
performance of arts/sports/skills
-
Performance of
sacrifices
-
Recitation of
Vedas/scriptures etc
-
Learning acquired
by science – scientific knowledge, religious/spiritual knowledg
There
was a difference of opinion as to whether such income earned is to be seen as
joint family income or separate (self-acquired) income. Before 1930’s, there
was a difference of specialised training and ordinary training. In 1930, the
English came up with the Hindu Gains OfLearning Act, solely to solve or rather
to answer this confusion. It therefore eliminated the distinction between
specialised and ordinary training.
Hindu Gains Of Learning Act,
1930
Section 2(b) states that
“gains of learning - means all acquisitions of property made substantially by
means of learning, whether such acquisitions be made before or after the
commencement of this Act and whether such acquisitions be the ordinary or the
extraordinary result of such learning; and”[4]
Section 2(c)states that
“learning means education, whether elementary, technical, scientific, special
or general, and training of every kind which is usually intended to enable a
person to pursue any trade, industry, profession of avocation in life.”[5]
Section 3[Gains of
learning not to be held, not to be separate property of acquirer merely for
certain reasons] states
“Notwithstanding any custom, rule or interpretation of the Hindu Law, no gains
of learning shall be held not to be the exclusive and separate property of the
acquirer merely by reason of— (a) his learning having been; in whole or in
part, imparted to him by any member, living or deceased, of his family, or with
the aid of the joint funds of his family, or with the aid of the funds of any
member thereof, or (b) himself or his family having, while he was acquiring his
learning, been maintained or supported, wholly or in part, by the joint funds
of his family, or by the funds of any member thereof.”[6]
Prior
to the passing of this Act, the courts used to take an approach thatif it is a
specialised training, then it is separate income, whereas if it is an ordinary
training, then it is coming at the detriment to the joint family property,
therefore it will be seen as a family income (because some way or the other
there being a usage of the family resources in acquiring a particular skill).
However, this approach in itself was eliminated through the passing of the
Hindu Gains OfLearning Act, 1930. Income through any sort of skill (specialised
or ordinary) was seen as a separate income, as a gains of learning of that
individual in order to distinguish it from ancestral income. However, the
relevance of the above act is very less now. It is replaced in significance by
the Hindu Succession Act.
Understanding Joint Family
Income And Separate Income
The
property gained with the help and support of the property of the communal
(joint) family is also considered to be communal. Therefore, the property
purchased with such income, such as by the accumulation of income, the rental
of the property of the co-family, the sales income of such property and so on-
property purchased with these income are also the property of the co-family.
If
in a communal family under the name of one of the members a property is being
purchased, it will be considered as the property of the co-family and not as a
self-acquired property. If you acquire the property without the help of the
property of the communal family, it may be treated as another property. This
self-acquired property will be accounted for as common joint family property,
if it is mixed with the joint family property.
Similarly,
if the head of the family purchases any property on his own, then the weight of
verification is on him to show that the property was purchased without
detriment to the joint family property. In the absence of such evidence,
it is presumed that the property is a property of the extended family.[7]
When
a property is given to the family or to a member of the familyas in order for
him to meet the family’s costs and expenses and, if out of the benefits arising
from such a property, the person purchases some other property, then even
this property will be considered as a joint family property.[8]
Businesses
started with the help of the joint family property by any coparcener or any
such profit arising out of the business will not always be seen as a joint
family income. It depends on a case-to-case basis. In one such case, one
of the members of a Dayabhaga coparcenary started a cinema theatre in with the
due consent of the other coparceners in which the property was co-owned by all.
There was no involvement of the other coparceners in this business in any way.
The license for beginning such a cinema hall was also obtained only in the name
of that member who wanted to start such a business, and there was enough
evidence which showed that even the granting of such a license was not in any
way objected upon by the coparceners. The court in this case expressly held that
a business started or run on a joint family property merely will not make it as
an income of the
extended
family, as in this case the profits arising as a result of the cinema hall
likewise is a separate income of that member and does not add up as the income
of that family.[9]
Property
procured by a Hindu in any of the accompanying ways is his self-gained property
despite the fact that he be an individual from a joint Hindu family:[10]
(i)
Property
gained by a Hindu by his own effort would be his self-gained property as it
isn't the aftereffect of any joint work with different individuals from the
joint family, and if detriment is not caused to the joint family property.
Where an individual has obtained any property via unfavourable belonging in the
wake of staying in its ownership antagonistically for a time of twelve years it
would be treated as his self-gained property not a joint property.
Where an individual from joint family carries on a business of clinical
professional in Ayurvedic meds and subsequently earns a weighty amount of cash
and gives credit on contract, in this manner collecting further pay, all the
income and the property hence obtained by him would be his different or
self-gained property.
As of late in the Supreme Court saw that if a male individual from the
Joint Hindu Family bought the property by his own earnings like his work pay or
salary, such property is his self-obtained property. Such property devolves
over his children by succession. It was held that that such property can’t be
called for as the property belonging to the joint family.[11]
(ii)
Property
acquired by a Hindu from any individual other than his
father/grandfather/great-grandfather can be classified as his self-obtained
property. Adding to that, a person earning income as a result of his hereditary
profession will not constitute as a joint family income. Example: Hereditary
profession as in a priest
In a renowed case, the court held that a Hindu can possess separate
property parallel to having a share in the hereditary property. Where in if any
member of a joint family succeeds to the property of his uncle, he has an
absolute right to enjoy that property on his own and it will be seen as a
self-gained property of that individual. Similarly, property acquired by an
individual from collaterals like siblings, uncle or auntsetc will not be
hereditary property and his child can't claim for it as a ancestral property.
If a person obtains the property of his brother because he died issueless, then
such property obtained by that person will be seen as a self-obtained property.[12]
(iii)
Property
obtained by a member of the Hindu joint family via partition of the joint
family property, and if he has no male issue, it will be dealt with as his
different or individual property. Similarly, if such a member makes a few
purchases with the assistance of his share in the joint family property, it
will be seen as his individual or self-obtained property.
(iv)
Any
property lapsing on a sole enduring coparcener given there is no widow in
presence who has ability to adopt or conceive, will be viewed as his different
property.
(v)
Property
acquired by a Hindu by a blessing (gift) or by will except if made by his
father/grandfather/great grandfather would be viewed as his individual
property.
(vi)
Endowment
of hereditary property made by the father through fondness to his son, will be
his self-obtained property.
(vii)
Property
acquired by a Hindu by award from the Government will be viewed as
self-obtained property.
Position Under Modern Law For Treating Salary/Remuneration Of
Coparceners As A Separate/Joint Family Income
There are divergent opinions with regards to salaries
of individuals in a family on whether they are to be looked at as separate or
family income. Most courts have found that, if it turns out to the understanding
of the court that substantially there is nothing but that the income was as a
result of investments or from utilizing the resources of the family or if it is
a namesake salary, but in fact, it is nothing but precisely the profits coming
out of the family investments – the courts have taken an approach wherein it
suggests that such incomes should not be seen as a separate income. It however
depends on the facts of the case.
There has been a conflicting opinion in the High
Courts.But, the Supreme Court has eventually said that, until and unless it can
be seen outrightly/apparently where the income is nothing but the family
assets, which are a source of that particular income/profit, and if such profitsare
being coloured as salary, then it cannot be seen as a separate income in this
regard. However otherwise if there is an element of individual skill, labour,
effort which is applied as the case may be by a particular coparcener, then it
can be viewed as a separate income of that coparcener.
Case: M.NMurugappa Chetty and Sons v. Commissioner of
Income Tax[13]- In this case, one of the coparceners was appointed
as the MD of a particular mill, and it was seen by the court that the
commission which was earned by him would be his individual income unless it can
be shown that it was not acquired by utilizing a portion of the Joint Family
property, to which detriment has been caused.
Case: Commissioner of Income Tax v. Kalu Babu Lal
Chand[14]- In this case, the Calcutta High Court was of the
opinion that whatever the earning is received by the MD, that is a
consideration for the service he is rendering and therefore, it has to be seen
as a separate income even if the Managing Directorship was as a result of the
family investment. But then, this matter was appealed to the Supreme Court. The
apex court was of a different finding. It said that, in this case, the Joint
Family property were used entirely for acquiring a concern, and the entire
arrangement – the purchase of the shares by the two coparceners, and one being
appointed as the MD, all of this was a part and parcel of the same scheme. So,
the Supreme Court was of the opinion that it cannot be seen as a separate
income.
Case: Commissioner of Income Tax v. Palaniappa
Enterprises [15]- In this case, the Madras High Court was of the
opinion that the manager of the family cannot gain a pecuniary advantage by
utilising family assets. So, the Madras High Court had a very strict approach.
It was appealed to the Supreme Court, and the apex court held that, the family
funds were invested only to receive dividends and the family funds asuntouched
by the Karta in earning his remuneration.It was held that the salary earned by
him was separate and belonged to him personally.
Case:V. D. Dhanwatey vs The Commissioner Of Income Tax[16]- In this case, the coparceners constituted a partnership
firm in such a way that the profits arsing out of the partnership was coloured
as salary. The court held that, it cannot be a separate income, and it was not
salary per se and it has to be seen as family income.
Conclusion
Hindu Law lays down a wide array of rules and
principles concerning joint family property. The Mitakshara law particularly
has been followed majorlyin India since ages until the Hindu Succession Act
came into picture. By this paper we were able to establish the position of the
income earned by the coparceners as to whether it is a joint family income or
separate income. There are a number of subjects affecting this topic, and the
classification of property in Hindu Law in one of the major influencers. We have
dealt in detail with all the relevant factors which determine the position of
income earned by the coparceners and also as to what constitutes as a
self-obtained property. All the topics dealt with by us are interrelated and
necessarily complement each other.
[1]https://legalacharya.com/classification-of-property-under-hindu-law/
[2]The
Vyuvuharu Muyookhu, Pg 86 - 88
[3]https://legalacharya.com/classification-of-property-under-hindu-law/
[4]https://www.indiacode.nic.in/bitstream/123456789/2391/1/a1930_____30.pdf
[5]https://www.indiacode.nic.in/bitstream/123456789/2391/1/a1930_____30.pdf
[6]https://www.indiacode.nic.in/bitstream/123456789/2391/1/a1930_____30.pdf
[8]D.
Latchandora v. Chinnabadu
[9]Satchidananda
Samanta v. Ranjana Kumar Basu and Others Calcutta High Court F.As Nos. 21 and
22 of 1976
[10]https://legalacharya.com/classification-of-property-under-hindu-law/.
[11]Makhan
Singh v. Kulwant Singh (2007) 10 SCC 602; Appeal (Civil) 4446 of 2005
[12]
Madanlal Phulchand Jain v. State Of Maharashtra And Ors SC Civil Appeal No. 2627 Of 1982 | 09-04-1992
[13]AIR
1952 Mad 828, 1952 21 ITR 319 Mad, (1952) 2 MLJ 17
[14]1959
AIR 1289, 1960 SCR (1) 320
[15]1984
150 ITR 237 Mad
[16]1968
AIR 682
Published Paper
Author Details
Author Name: Sai Pranav
Title: Legal analysis of the position of property and income of coparceners in a joint family as per the Hindu Law
Email Id: sai.pranav@law.christuniversity.in
Article Information
Legal analysis of the position of property and income of coparceners in a joint family as per the Hindu Law (By- Sai Pranav)
Authors: Author Name: Sai PranavTitle: Legal analysis of the position of property, income of coparceners in a joint family as per the Hindu Law
- Journal IJLRA
- ISSN 2582-6433
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