Joint family property and separate property
Family Law I - Hindu Law · Unit III · Topic 9 of 20 · 7 min read
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1. Two kinds of property
Under the Mitakshara, property in the hands of a Hindu is either joint family (coparcenary) property, in which his sons (and now daughters) acquire an interest by birth, or separate (self-acquired) property, which he owns absolutely and may sell, gift or bequeath as he likes. There is no presumption that a joint family owns property. The person who claims that a property is joint must show that the family had a nucleus of joint property sufficient to have made the acquisition possible; once that is shown, the burden shifts to the member claiming it as separate to prove that it was acquired without the aid of joint funds: Srinivas Krishnarao Kango v. Narayan Devji Kango, 1954 INSC 33, AIR 1954 SC 379.
2. Joint family property
(a) Ancestral property. Property inherited by a Hindu from his father, father's father or father's father's father is ancestral, and his sons, grandsons and great-grandsons acquire an interest in it by birth. Property inherited from any other relation (maternal grandfather, mother, brother, uncle, a female) is not ancestral; it is his separate property.
The Hindu Succession Act changed the position for property inherited from the father after 1956. In Commissioner of Wealth Tax v. Chander Sen, 1986 INSC 143, (1986) 3 SCC 567, a father's share in a business, on his death, passed to his son under section 8. The Court held that property inherited under section 8 by a son from his father is the son's individual property, not HUF property in which his own sons take by birth. Section 8 lists the son alone, not the son's son, among Class I heirs where the son is alive, which shows Parliament did not intend the grandson to take by birth. This was followed in Yudhishter v. Ashok Kumar, 1986 INSC 265, (1987) 1 SCC 204. Property that was coparcenary property before 1956, or that devolves by survivorship or remains joint without partition, keeps its ancestral character.
(b) Share allotted on partition. Property a coparcener receives on partition is his separate property as regards his former coparceners, but it is ancestral as regards his own male issue (and now daughters), who acquire an interest in it by birth.
(c) Joint acquisitions. Property acquired by the members jointly, or by any member, with the aid of joint family funds or joint family property, and income from joint property and anything bought with it, is joint family property. So is property acquired by the joint labour of the members in the course of a family business.
(d) Separate property thrown into the common stock: blending. A coparcener may voluntarily throw his separate property into the common stock with the intention of abandoning his separate claim over it. It then becomes joint family property. The requisites:
- the person must be a coparcener. A female member who was not a coparcener (under the old law) could not blend her property with joint property: Mallesappa Bandeppa Desai v. Desai Mallappa, 1961 INSC 35, AIR 1961 SC 1268;
- there must be a clear intention to waive separate rights. Mere use of the separate property by the family, or allowing members to share its income out of kindness, is not enough: Lakkireddi Chinna Venkata Reddi v. Lakkireddi Lakshmama, 1963 INSC 45, AIR 1963 SC 1601;
- the act is unilateral; no acceptance by the others is needed, but the burden of proving the intention is on whoever alleges blending.
3. Separate or self-acquired property
A Hindu, even while a member of a joint family, may hold separate property. It includes:
- property acquired by his own exertions without the aid of joint family funds;
- property obtained by gift or bequest from a stranger or from a relation other than the paternal ancestors;
- property received by gift or will from the father out of the father's own self-acquired property. Whether it is ancestral or separate in the son's hands depends on the father's intention, gathered from the document; if no intention to treat it as joint appears, it is separate: Arunachala Mudaliar v. Muruganatha Mudaliar, 1953 INSC 67, AIR 1953 SC 495;
- property inherited from collaterals, from females, from the maternal grandfather, and (after Chander Sen) from the father under section 8 HSA;
- gains of learning, even if the education was paid for out of joint funds (Hindu Gains of Learning Act, 1930);
- ancestral property lost to the family and recovered by a member without the aid of joint funds;
- a share obtained on partition, as against the former coparceners;
- the income of separate property, and property bought with it;
- government grants made to a member individually.
Incidents of separate property: the owner has absolute power of disposal by sale, gift or will; his sons have no right by birth in it; on his death it passes by succession under the Hindu Succession Act; and he may, if he chooses, blend it with the joint property.
4. Under the Dayabhaga
Under the Dayabhaga, sons acquire no interest by birth, so even ancestral property in the hands of the father is held by him absolutely; he can alienate it at will. Joint family property arises only when heirs inherit together on the father's death, and each then holds a defined share which he can alienate and which passes by succession. The same distinction between joint and separate property applies among such co-heirs: what they acquire with the joint estate is joint; what one acquires by his own effort is separate. The Hindu Succession Act now governs succession to both kinds.
5. Problem
F bought a house in 1990 out of his salary and died intestate in 2010, leaving his son S as his only heir. S has a son G. S now wants to sell the house; G objects that he has a right in it by birth.
Issue. Whether the house is joint family property in S's hands, giving G an interest by birth.
Law. Self-acquired property of a Hindu passes on his intestate death by succession under section 8 HSA. Property inherited by a son under section 8 is his individual property: Chander Sen, Yudhishter.
Application. The house was F's self-acquired property, bought from his salary without joint funds. On his death in 2010 it passed to S under section 8 as a Class I heir. It did not become coparcenary property in S's hands, and G acquired no interest in it by birth. Unless S has thrown it into a common stock, it is his separate property.
Conclusion. S may sell the house; G's objection fails.
How this is examined
As a 10-mark question: “Distinguish between joint family property and separate property” or “What is coparcenary property? How is it different from self-acquired property?” List the kinds of joint property, the kinds of separate property, the burden of proof, and the doctrine of blending with its two cases. Short notes: “Doctrine of blending”, “Ancestral property”. The inherited-house problem above is common and turns on Chander Sen.
Now try the real questions: Family Law I - Hindu Law past question papers.