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CHANGING NATURE OF THE PROPERTY FOR ITS USAGE IN CONTEMPORARY HINDU SOCIETY: A SOCIO-LEGAL STUDY
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CHANGING NATURE OF THE PROPERTY FOR
ITS USAGE IN CONTEMPORARY HINDU SOCIETY: A SOCIO-LEGAL STUDY
AUHTHORED BY - VIKAS KUMAR
Introduction
The concept
of property plays a very important and crucial role under Hindu society. The
description of Hindu law will be incomplete without discussing the concept of
property. It is a very complex and dynamic in nature. The importance of
property for a Hindu is described in the old writings. The old writers describe
how properties matter for the society, family and individuals. They explain
this by citing the necessities of property for social, religious and individual
purposes. In the old religious texts, it was given that usage of property is
related to the individual’s karma. The Manu, Narada, Vrispati and etc talked
about this.
But with
the changing times, Hindu society gets changed and it modifies itself with the
need of the time. This the reason for the continuous practise of Hinduism even
after many changes. It is the beauty of Hindu society that it encompasses the
changes and also preserved their basic foundational pillars. Along with other
changes, the concept of the property also gets changed. The different kinds of
properties like joint family properties, properties of Hindu undivided
properties, ancestral, coparcenary, properties under joint-stock, separate
property, self-acquired property and etc get changed with the time. Also, the
changes are not only in kind but also in its usage. The properties which were
previously used for mainly religious and social purposes now gets used for the
individual betterment.
There are
confusions regarding this because of diverse writing and sources. Many writers
say many things in different manners and in the context of a different society.
And the inclusion of English law also made it more complex because of the
different nature of property in English law and Hindu law. This research paper
is aiming to just simplify the concepts, changing types of property and will
also discuss the changes in its usage. It will also discuss the changing nature
of the society, and the effect of change of property upon them. It will also
discuss the changing legal scenario regarding the property and its usage. It
will discuss the impact of changing the law regarding the property and hoe
society accepts that. It is research tracing the usage of property in the old
law and the changes in its in modern times. The whole study is around the
concept of property and its usage in relation to social and legal changes.
Aim and Objectives.
This paper
is aim to study the nature of the property and its usage under the contemporary
Hindu society in the light of the nature of properties and the laws regarding
the Hindu society. It is an attempt to study the impact of changes brought by
law in society. It will study the peopes reactions and the changes in their
lifestyles.
Research Methodology
This study is based on the doctrinal
method of study and research. The researcher considered various articles,
journals and write-ups to understand the changing nature property and its
usage. This research paper also studies many cases to provide support to the
arguments. In this research, both descriptive and analytical method of writing
has been used.
Understanding Property under Hindu law
According
to the dictionary meaning, property means “any object of value that a person
may lawfully acquire and hold; anything that may be owned; stocks, land, etc.;
any possession. It is also ownership or dominion; the legal right to the
possession, use, enjoyment and disposal of a thing; a valuable legal right or
interest in or to a particular thing.”[1]
Many
authors described property as an economic value and many as right. In common
sense, property means the right which also has the economic value. Property is
attached to many elements of life a human being. Economic, social, legal,
psychological attachment are indispensable from the property. In the eye of the
law, it is a package of rights and the question is who exerts its control and
what rights accumulate from it. On the point of defining property, Experts are
of opinion that, it is challenging to define the property without concerning the
factor of variation in ownership.[2]
The property is different in different societies and in a different context.
Factors and conditions of ownership may vary with respect to these changes. Although
the property is universal, it is culture-specific and any study regarding this
should be done in the shadow of the society it belongs. It is the case with the
Hindu law. The view of society about the property is different from other
religion and other laws.
According
to philosophers like Engels who describes the concept of private ownership, at
the time of the initial stage, the property is under common ownership. The
individual ownership started after the concept of ownership regarding the
cattle like cow, goat and etc. First, it was changed to family from common
ownership and then after it is moving towards an individual’s ownership.[3]
The forms of the family also determine the nature of the property. At the time,
when the property was held by the common people the nature of the right is the
enjoyment of property not of ownership. In Hindu law, the Shastra not only
describes the property as a right of enjoyment or ownership but also consider
it as a tool to perform some religious rituals which is necessary for a Hindu.
As the society changes the laws governing property gets changed which also
modifies the nature of the property. In modern times, there are many laws
governing the property among the society. Different places, society has
different laws regarding the property.
The
Mitakshara School classifies property mainly under two heads: first, Apratibandha Daya or unobstructed
heritage; and secondly, Sapratibandha
Daya or obstructed heritage.[4]
All properties inherited by a male Hindu from a direct male ancestor, not
exceeding three degrees higher to him are called Apratibandha Daya. In the
interest was due to the birth. On the other hand, when a person inherits
property from any other relation, such as a maternal or paternal uncle or
brother, nephew, etc., then it is known as Sapratibandha Daya. In this, the
individuals don’t get interest by birth. The different kinds of property under
Hindu law will be described later.
Property under English law
The concept
and nature of property under English law and Hindu law is very much different.
In England, ownership, as a rule, is single, independent, and unrestricted.
There may be some cases where it is joint but in general cases, it is of
individuals and because of this the presumption is in favour of individuality.
Whereas in Hindu law it is contrary to English law, the presumption is in favour
of joint because the society is of such nature. In Hindu law, joint ownership
is the rule. If an individual holds any property in severalty, it will in the
next generation, relapse into a state of joint ownership. A Hindu may start
with nothing, and make a self-acquired fortune by dint of his own ability,
knowledge and skills and he is the absolute owner of the estate. But, I na
couple of generations his offsprings would have ramified into a joint family,
exactly like a Banyan tree which started as a single shoot. [5]
Absolute, unrestricted ownership is an exception. Hindu law has a check and
balance inbuilt mechanism regarding the control over the property. The father
is restrained by his sons, the brother by his brother, the woman by her
successors. If a property is free in hands of its acquirer, it will become
fettered in the hands of his heirs., Individual property is the rule in the
west; corporate property is the rule in the East.[6]
Kinds of Property under Hindu law
Joint Family property or coparcenary property
Hindu joint
family is a very ancient concept. It consists of a common ancestor and all his
lineal male descendants up to any
generations together with the wife or wives (or widows) and unmarried daughters of the common ancestor, and of the lineal male descendants.[7]
The Smriti and commentaries also describe the joint family as ‘Kutumba’ or
‘Avibhakta-Kutumba’.[8]
The common ancestor is the person who starts the joint family but the family
doesn’t dissolve after the death of the common ancestor. Hindu law confers
status and several rights to the members of a Hindu joint family, the concepts
of coparcenary, Aand other things related to property is related to this. An
undivided Hindu family is ordinarily joint not only in the estate but also in
food and worship.[9]
Withing the
Hindu joint family, there is a narrower part called Coparcenary. It includes
the eldest male member of the family along three generations belong the person.
The interest in property arises just by taking birth. Here a mere conceived child
is also a coparcener subject to his birth.
Joint-family
property or coparcenary property signifies the property in which all the
coparceners have a community of interest and unity of possession. There
are different types of properties having different nature inside the circle of
Hindu joint family or coparcenary properties. These are as follows: -
a) Ancestral
Properties.
b) Property
jointly acquired by the members of the joint family.
c) Separate
property of a member “thrown into the common stock”.
d) Property acquired
by all or any of the coparcener with the aid of joint family funds.
These are
the most common types of property under the property of the Hindu Joint Family.
The mere severance of status in a joint family doesn’t change the nature of the
property. A joint family property continues to retain its joint family
character so long as the joint family property is in existence and is not
partitioned amongst the co-sharers.[10]
Ø Ancestral Property
It refers
to all properties which a man inherits from a direct male ancestor, not
exceeding three degrees higher than himself, is ancestral property, and is at
once held by himself in coparcenary with his own male issues.[11]
In general sense, it can be said that, all those properties which devolve by
survivorship and not by successions. The only persons who acquire an
interest in it by birth are sons, son’s son and son’s son’s son. Any property
by other relatives like mother, sister, brother etc, will not come under the
ambit of ancestral property, the nature of such properties are different from
this. To determine the nature of property given by the grandfather, or father
to the person will be determined by examining the intention of the person who
submits the property. If the giver has the intention to give the property for
the personal use then the property will not be count under the ancestral
property. In case of other intentions like to preserve the property to pass
over the next generations then the property will be under the ambit of
ancestral property.
The Court held
that where it has not been indicated in the deed of gift that the donee will
take as a joint family property, that property shall be the absolute property
of the donee, in which his sons will not have any right by birth.[12]
Therefore, the intention is one of the important factors to trace the ancestral
property.
Ø Property jointly acquired by the members of the joint family
If any
property is included in the Hindu joint family by its member by their joint
labour whether, in business, profession or vocation, with the aid of joint
family property, the nature of property is of the coparcenary and belongs to
the joint family. The presumption about the property lies in the favour of
Hindu joint family unless the contrary is proved.[13] It is settled rule that if any property is
acquired by the member of the joint family or any interest from the property of
joint family will be the property of the joint family if the intention and the
circumstances don’t go contrary. The nature of property is of joint ownership.
It shows the concept of unity in our older Hindu law. It explains the reasons
that even after many changes the people believe in common ownership.
Ø Separate property of a member “thrown into the common stock”.
When any
coparcener voluntarily in the situation of giving consent submits his
self-acquired property into the joint fund with the intention of deserting his
personal claims to it, then the nature of such property is of the joint
property. All other members will get the right over that property.[14]Further,
it will change its nature into ancestral property. Surrender of such property
is not a primary activity, it is possible only by thoughtful and intentional
acts of the owners of such property by direct or indirect expression. The
conduct of part can also express his intention. The act of surrendering the
property is unilateral. The act of submitting own property to the joint fund is
not the act of gift nor is its gift. There is neither any donor nor donee nor
does it attract the provisions of Transfer of Property Act.[15]
In the lack
of submission of any property by a person into a joint family, no self-acquired
property will be converted into joint family property. If any member claims
that certain property of the joint family is not of the joint family but his
own individual then the burden of proof lies on the person who claims such.[16]
Ø Property acquired by all or any of the coparcener with the aid of joint
family funds.
Any
property which has been acquired by the joint family then all the acceleration
like rent, income, sale etc will be the property of the joint family. In a
joint family, it is a practise that there are several properties and businesses
of the family and different members are managing that. The gain by those
properties will be of the joint family not of the person who was managing it.
It also includes the properties which were purchased on the name of one of the
members of the joint family by the aid of the other members or property of the
joint family. So, the mere purchase on the name of a person is not enough to
make the property self-acquired.
It shows
the culture of the Hindu joint family, in which each one is responsible to each
one and the Karta of the family ensure the distribution of resources for all
according to needs. When it is proved or admitted that a family possessed
sufficient nucleus with the aid of which the member might gain any property
then the presumption in eye of law is that it is a joint family property and
the burden of proof is on the individual member to show evidence that the
property was acquired by him without the aid of the said nucleus and the
intention was of self-acquired property not of the joint family.[17]
Changing
the nature of the property under Hindu society
As time
changes. Hindu society also went through changes and need and thinking of the
people also got changed. The concept of the property also went through many
changes. The concept of commonship is changed into individualism. The people
shifted for the individual property instead of common welfare and common
ownership over the property. The major change is that property shifts to
self-acquired property which is also known as Separate property.
Ø Separate property- means the person has
ownership over the property, not the joint family. It happens when a person
separates himself from the joint family, he gets his share on which he has the
ownership but still at that time his brach will take that property as the joint
family property. In other words, it means property obtained by a Hindu without
any detriment to ancestral property.[18]
Separate property is also known as self-acquired property. It refers to the
property acquired by Hindu by his own exertions without the assistance of
family funds.[19]
There are
many other types of property which comes under the ambit of self-acquired
property or separate property. These are the following properties: -
Ø Obstructed heritage- These are the properties
inherited by a Hindu from a person other than his father, father’s father or
father’s father’s father.[20]
In previous times, it was said that the property should be only given to their
own son but at the present time, people prefer to transfer the property to the
person who supports him in his lifetime. Changing relations lead to the
innovation of this type of property.
Ø Gift- A gift of a small portion of
ancestral movable property made through affection by a father to his male
issue, is his separate property.[21]
Ø Government grant- Any property which has
been granted by the government to a member of a joint family is the separate
property of the person unless the contrary is proved.[22]
Ø The income of separate property- The
income of separate property and purchase made with such income.[23]
Ø Separate earnings- The individual’s earning of
a member of a joint family. It can be in many ways like remunerations, salary,
incentives and etc.
Thus, these
are the major types of property in modern times which has the basic of the
nature of property as in traditional times but has the flavour of modernisation
and individualism.
Changing
usage of property under a Hindu society
The usage
of property depends upon the society which is using it and the time it is being
used. The usage of property under Hindu society is somehow gets changed in
modern times in comparison to traditional times. The traditional Hindu society
uses the property for social welfare, commonness, religious purposes,
protection from any future problems and etc. The main use of the property was
for religious purposes. The rules to use the property were governed by the
Shastras. The moral duties were given priority regarding the use of the
property. Even in modern days, it is said that moral duties are necessary even
after there are other legal duties. The priority is given to moral duty under
Hindu society.
The pious
obligation of the son is one such moral obligation where precedence to moral
obligation was given over legal rights.[24]
In the counting of such moral obligations, religious duty is important which
also includes the payment of the debt of father. The inclusion of the debt part
is derived from the belief of Hindu society that unpaid debt will lead to hell
after the death and it is the duty of the son to discharge the debts of his
father. [25]
The ancient Indian literature is full of evidence of the importance given to
the discharge of liability to pay off debt from ancient times. According to
ancient Indian thought, one is born indebted; and is under an obligation to
discharge the liability.[26]
According
to literature, the son is desired because of the reasons that he would pay the
debts spiritual and worldly of his father. This the basis of that the pious
obligation of the son is based on the authority of the religion. But at the
same time son is exempted from paying the “avyavaharika”
debts. It consists the debts which are not immoral like for play,
entertainment, on prostitutes and etc. As it was stated that morality was given
importance there is no chance of bounding the son for the immoral acts of his
father.
Impact of Laws
The above
practices were not codified but remain in the practices of people with little
bit deviations according to society. The status of property gets drastically
changed after the enactment of the Hindu Succession Act 1956 which has a very
far-reaching impact on the nature of the property and its usage under Hindu
society. Although, it was said that the act is not intended to change the
nature of hindu family, it changed many things. The rule of survivorship and
Doctrine of ownership which is basis of pious obligations was effected by
sections 6,8, and 30 of the aforesaid act.
Considering
the changed the law, the court established the principle that the sons cannot
set up their rights against their father’s alienation for an antecedent debt,
or against his creditor’s remedies for their debts, if not tainted with
immorality. On this important question of the liability of the joint estate,
their Lordships think that there is now no conflict of authority.[27]
The court supports the doctrine of pious obligation,[28]
but in between that many courts expect the son from paying immoral debts.
Later, the courts realised the importance and economic challenges behind this
doctrine and then curtailed the doctrine of immoral debts. The court held that
if a person is getting property from one then he is bound to pay his debts
without considering the immoral or moral debts. This was done on the basis of
provisions given in section 4 of the Hindu Succession Act.
The Hindu
Marriage Act, 1955 has a great impact on the doctrine of pious obligation.
Section 16 of the Act in order to remove the social stigma about illegitimate
child provides rights to an illegitimate child which are equivalent to a
legitimate child. But the legitimacy means the child will only get the property
of his father- mother not of grandfather and because of this he is exempted
from pious obligation. This was the partial abrogation of the doctrine of pious
obligations. Further, the Amendment act of 2005 totally abrogates this
doctrine. The provisions of legitimacy and the coparcenary rights to women were
the reason for superseding this doctrine. The said amendments were made
considering the social welfare, equality and acceptance by society. The very
basic of providing coparcenary rights only to son is that they have to perform
the pious obligation was destructed by giving this right to the women.
Now, in
modern times, the property is for the purpose of the individuals use which also
includes religious and moral duties. There are no exceptions for not following
the legal duties. Therefore, as the nature of property changed with time, the
legal enactments changed the usage of property in Hindu society. In starting of the intereferance of law in
the religious matter was opposed by the people but very soon they accommodate
the changes understanding the need. The changes are centered to the individual
and these changes mainly glorified the importance of women in society and tried
to make the society discrimination-free on the basis of gender.
Conclusion
The nature
of the property was definite but uncodified in the traditional age of the Hindu
society. There was clarification regarding the nature of the property and it was
a presumption that the property belongs to the joint family. The nature of the
property was of joint ownership which later changed to the separate or
self-acquired ownership. The changed scenario considers the changing need of
the individuals and their requirements. It discovers the new arena of diverse
natures of property. There were different types of property with different
usage. The changed scenario also changed the usage of the property. Previously
it was focus on the morality and the religion-based duties but after the
enactments of many laws like Hindu Marriage Act, 1955, the Hindu Succession
Act, 1955, and the amended act of 2005.
These acts made some changes one after another which makes different
laws regarding the nature of the property and its usage. These new laws were
opposed by the old minded people on the basis that it will infringe their
personal laws but after considering this in new world, the Hindu society
accepts it wholeheartedly. These changes give new rights to individuals of the
Hindu society which were not provided in the past. It also legalises the many
things which were only based on morality. These changes are good and
far-fetching for society. The society should look forward to encompasses such
laws in future.
Bibliography
Books
1.
Paras Diwan and Peeyushi Diwan, FAMILY LAW, 4th ed.
1998, Allahabad Law Agency, Allahabad.
2.
R K Agarwal. HINDU LAW, 21st ed. 2003, Central Law
Agency, Allahabad.
3. Satyajeet Desai (rev.), D.F. Mulla,
PRINCIPLES OF HINDU LAW, Vol. I 18th ed. 2001.
4. Rangnath Mishra and Vijender Kumar
(rev.), John D. Mayne, TREATISE ON HINDU LAW AND USAGE, 17th ed.
2014.
Articles
1. Vijender Kumar, “Basis and Nature of
Pious Obligation of Son to Pay Father’s Debt vis-à-vis Statutory Modifications
in Hindu Law”, 36 JILI (1994), The Indian Law Institute, New Delhi.
2. Vijendra Kumar and Vidhi Singh,
“Extinguishing Hindu Joint Family and Mitakshara Coparcenary: A Critique”, 1
CLPR (2018), MNLU Nagpur.
Article Information
CHANGING NATURE OF THE PROPERTY FOR ITS USAGE IN CONTEMPORARY HINDU SOCIETY: A SOCIO-LEGAL STUDY
Authors: VIKAS KUMAR
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/12/26
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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