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1. CHAPTER 2 HINDU JOINT FAMILY

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 CHAPTER 2 HINDU JOINT FAMILY
Kusum & Poonam Pradhan Saxena - Family Law
Poonam Pradhan Saxena

Kusum & Poonam Pradhan Saxena - Family Law > Kusum & Poonam Pradhan Saxena - Family
Law > VOLUME II

CHAPTER 2 HINDU JOINT FAMILY

INTRODUCTION

The Hindu joint family is a normal condition of the Hindu society. Its origin can be traced to the ancient patriarchal
system where the patriarch or the head of the family was the unquestioned ruler, laying down norms for the
members of his family to follow, obeyed by everyone in his family, and having an unparallel control over their lives
and properties. At the root was the general family welfare or promotion of family as a unit for which personal
interests of the family members could be sacrificed. Under Hindu law therefore the joint family system came first
in historical order and the individual recognition of a person distinct from the family came later. The ancient system
generally treated the property acquired by the members of the family as family property or the joint property of the
family with family members having one or the other right over it. With gradual transformation of the society and
recognition of the members of the family as independent in their own right, concept of separate property and rules
for its inheritance were developed. This dual property system, though considerably diluted 1, has survived the lashes
of time, the judicial and legislative onslaught and the Hindu society still recognises the joint family and joint
family property as unique entities having no similar concept alive anywhere else in the world.

COMPOSITION OF HINDU JOINT FAMILY : CLASSICAL CONCEPT

A ‘Hindu Joint Family’ consists of all male members descended lineally from a common male ancestor together
with their mothers, wives or widows and unmarried daughters. 2 An unmarried daughter on marriage ceases to be a
part of her father’s joint family and joins her husband’s joint family as his wife. If a daughter becomes a widow or
is deserted by her husband and returns to her father’s house permanently, she again becomes a member of her
father’s joint family. Her children however don’t become members of her father’s joint family and continue being
members of their father’s joint family. Even an illegitimate son of a male descendant would be a member of his
father’s joint family.3 A child in womb till it is born is not a member of the joint family for taxation purposes4 but is
treated as in existence for certain purposes under Hindu law.

Fig. 2.1

In Fig. 2.1, A is the seniormost male member. He together with his wife, W, his two sons S1 and S2 and their wives
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CHAPTER 2 HINDU JOINT FAMILY

W 1 and W 2, grandsons S3 and S4 and their wives W 3 and W 4, great-grandson S5 and his wife W 5 and great-
great grandson S6 will form a Hindu joint family. D 1, D 2 and D 6 will be members of the joint family of A till they
are unmarried. On their marriage they will cease to be the members of A’s joint family and will be part of their
husband’s joint family. To bring into existence a joint family for the first time the presence of the seniormost male
member is an essential condition. However, once the joint family comes into existence it continues despite the
death of this male member. Fresh members are added by marriage of lineal male descendants and birth of children
in the family while the existing members may die, as death is a natural phenomenon. The continuation of the joint
family is not restricted in point of time and until it ends by the death of all members of the family capable to form
such family, it continues.

The members of a joint family are bound together by the fundamental principle of sapinda-ship or family
relationship, which is the essential feature of this institution. The cord that knits the members of the family is not
property but the relationship with one another. The Mitakshara doctrine of joint family property is founded upon the
existence of an undivided family as a corporate body.5 The first requisite is the family unit, and the possession by it
of family property is the secondary requisite. Such body with its heritage, is purely a creature of law and cannot be
created by acts of parties save in so far that by adoption a stranger may be affiliated as a member of that corporate
family.6 In absence of any evidence to the contrary a uterine brother is a member of the Hindu joint family in
Nepal.7

OUSTER OF A MEMBER FROM THE JOINT FAMILY

An unmarried daughter ceases to be a part of her father’s joint family on her marriage and may regain her status if
she becomes a widow or if on being deserted by the husband comes back to her father’s house permanently. A
child male or female born in the family can cease to be a member of this family if he or she is given in adoption to
another family by a person competent to do so under the law. Since adoption is an irrevocable act, such child
cannot become a member of this family again in future. The marriage of a lineal male descendant under the
Special Marriage Act, 1954 to a non-Hindu will result in his automatic severance from the joint family and he
cannot become a member of this family even by agreement.8Till the passing of the Caste Disabilities Removal Act,
1850, also known as the Freedom of Religion Act, conversion of a Hindu to another faith meant an automatic
expulsion from the joint family. Since the Act protected and removed the disabilities imposed earlier on a convert, 9
he or she could not be so expelled from the joint family when they ceased to be Hindus by converting to another
faith. Yet, since a Hindu joint family is an institution available only to Hindus under Hindu law, such converts can
neither form a joint family nor claim the benefit of it for taxation purposes. It has been held that a Hindu father with
his Christian wife and a son will form a Hindu joint family.10 The correctness of the decision is doubtful, as in a
joint family the father and son constitute a coparcenary. In the coparcenary, the son has a right by birth. As being
Hindu is an essential qualification to be a member of the joint family, the son of a Hindu father by a Christian
mother need not be a Hindu in all cases. He will be a Hindu only if he is being brought up as a member of his
Hindu parent’s tribe or community. In other words, his religion cannot be determined at the time of his birth but is
dependent upon his being brought up as a Hindu. As membership of a son in the joint family is to be determined
at the time of birth, a son who may not be a Hindu would not be a member of his father’s joint family.11In fact, a
Hindu man marrying a non-Hindu is incompetent to form a Hindu joint family. Presently marriages between a
Hindu and a Christian can be validly solemnised under the Special Marriage Act, 1954 and under the Indian
Christian Marriage Act, 1872. If they marry under the former Act, a Hindu man will cease to be a member of the
joint family, there is no reason why the same consequences should not apply if they marry under the latter Act.
Thus, the concept of a Hindu joint family would mean a Hindu father, having a Hindu wife and Hindu children. It
is a Hindu joint family and cannot comprise non-Hindu members let alone a family having only a Hindu father, a
non-Hindu wife and children whose religion cannot be determined at birth but is dependent upon the contingency of
them being brought up as Hindus.
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CHAPTER 2 HINDU JOINT FAMILY

COPARCENARY

Coparcenary is a narrower institution 12 within a joint family comprising only male members.13 The primary purpose
of understanding the concept of coparcenary is to determine the group of persons who can offer spiritual
ministrations to the father. It signifies a relationship. These descendants, i.e. son, son of a son, son of a son of a
son also have a right by birth in the property of the father and therefore its incidental implications are also property
related. Gradually the spiritual aspect was dominated by the understanding of the concept in relation to the property
that they can collectively own. With this segregation between the legal purpose and the religious purpose, the
concept of coparcenary, which initially had the dominant objective rooted in relationship, is currently understood to
ascertain the rights and obligations of the members of the family in the property owned by the joint family which is
also called the joint family property or the coparcenary property. The seniormost among the coparceners is called
the last holder of the property and from him a continuous chain of three generations of male members form the
coparcenary. All the coparceners have an interest in the coparcenary property by birth and have a right to ask for
partition of the same. Under the classical law no female could be a member of coparcenary. 14 A person removed by
more than four degrees is not a coparcener. 15 An illegitimate son of a lineal male descendant is a member of the
joint family but is not a coparcener.16

Fig. 2.2

In Fig. 2.2, a family comprising the father, F, his wife, W, his daughter D, three married sons, S1, S2, S3, with their
wives W 1, W 2, W 3, and married grandsons, S4 and S5 with their wives W 4 and W 5 and a great grandson S6,
all will be members of a joint family. However, the daughter will be a member of this family till she is unmarried but
as far as the coparcenary is concerned, father’s wife, W, as also the lineal descendants’ wives, W 1, W 2, W 3, W 4
and W 5 and the daughter D will not be members of the coparcenary and the father, F, his three sons S1, S2, S3,
grandsons S4 and S5 and great-grandson S6 would be members of coparcenary and will have a right by birth in the
ownership of this property.

INCIDENTS OF HINDU JOINT FAMILY

(i) A common male ancestor is necessary to bring the Hindu joint family in existence but is not necessary for
its continuation. After the death of such common male ancestor the rest of the family continues to be a
joint Hindu family. It is said that upper links are removed and the lower links are added e.g., in Fig. 2.3,
the seniormost male member A with his wife W and two sons constitute a joint Hindu family. One son S1
is married and has a son S3. On the death of A, the joint family does not end and it continues with W, W
1, S1, S2, and S3 as its members.
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CHAPTER 2 HINDU JOINT FAMILY

Fig. 2.3

1ii) A Hindu joint family is purely a creature of law. This means, it cannot be created by the act of the
members or an agreement between the parties. Therefore, a stranger cannot be made a member of a
Hindu joint family even by agreement among all members. The only exception to that is marriage and
adoption. A female can be introduced as a member of the joint family by virtue of her marriage with a
lineal male descendant and a child, male or female, can be added to the family by birth or by a valid
adoption into the family.
1iii) A Hindu joint family has no legal entity distinct or separate from its members. 17 It is a unit and is
represented by the manager of the joint family who is called ‘Karta’18 in all family matters. It cannot sue or
be sued in its own name. It is neither a juristic person 19 nor a corporation and therefore cannot convey the
property in its joint character.
1iv) A Hindu joint family is not a juristic personality capable of holding property as an entity separate from its
members. Therefore when it is said in relation to joint family that it possesses joint family property or
coparcenary property, it literally means that not only the family as a unit but also its members collectively
own property.20
1v) The status of a joint family member can be lost by conversion to another faith, by marriage to a non-
Hindu, on being given in adoption by the competent parents, and for a daughter, on getting married.
1vi) All members in a joint family do not have equal rights in the family property. Coparceners have an
interest in the coparcenary property while females and male members other than coparceners or
disqualified coparceners have a right of maintenance and a right of residence in the joint family house.
1vii) The continuation of a joint family is not dependent upon the presence of a male member in the family.
1viii) Plurality of members is necessary for constitution of or continuation of joint family but plurality of
male members is not necessary for its continuation. The joint family does not end even with the death of a
male member as long as it is possible in the nature of things to add a male member in the family.
1ix) A Hindu joint family may continue in perpetuity until it ends. Even where a partition is effected this joint
family may break but does not end as in its place two or more joint families come into existence.

In Fig. 2.4, a joint family comprises the father F, his wife W, his three married sons S1, S2, S3, with their wives, W
1, W 2 and W 3, four grandsons, S4, S5, S6 and S7 and two unmarried daughters D 1 and D 2. When a partition is
effected, instead of one, four smaller joint families will come into existence. F, along with W and the daughters will
form one joint family. S1 along with his wife and son will form another, while S2 and S3 will form joint families
with their sons and wives.
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CHAPTER 2 HINDU JOINT FAMILY

Fig. 2.4

Presumption of Jointness

The general principle is that every Hindu family is presumed to be a joint Hindu family21 and continues to be
joint22 unless contrary is proved. It is presumed to be joint in food, worship and estate. 23 But that does not mean
that they must necessarily have a common kitchen, a joint place of worship or that they should worship at all.
However, if they do have one kitchen in their house, it is presumed to be joint unless contrary is established. The
joint family members may be living for the sake of convenience in different parts of the house, may not even share
a common kitchen; yet the family will be presumed to be joint. For e.g., in Fig. 2.5, a Hindu family comprises a
Hindu male A and his wife W, his three married sons S1, S2 and S3 with their wives W 1, W 2, and W 3, all living
together at Delhi. The family will be presumed to be a joint Hindu family.

Fig. 2.5

All three sons might be living in different rooms; they might be having different kitchens, yet, the family will be
presumed to be a joint family. Suppose S1 gets a job at Mumbai and with his wife goes to Mumbai, S2 gets a job
at Chennai and goes to live there with his wife and S3 gets a job at Bangalore and goes to live there with his wife.
Yet, the family would continue to be a joint family24 as mere severance in food and worship does not result in or
operates as a separation.25

Thus even if a member starts living separately he continues to hold his joint status for the purposes of his share as
a member of Hindu Joint family26.

Commissioner of Income Tax v. Gomedalli Lakshminarayan, AIR 1935 Bom 412

A Hindu Joint family consisted of the father, his wife, his son and the son’s wife. Upon the death of the father, the
question before the Income Tax Commissioner was whether the joint family can continue even when there was
only one male member i.e., the son in this case and whether he is to be assessed as an individual or as the Karta of
the joint family of which he was a member. The importance of this question lay in the fact that for the purposes of
super tax he would be allowed a large exemption if he was taxed as the manager of a joint Hindu family than if he
is taxed as an individual. It also means that if the Hindu joint family is taxed as a unit the individual members are
not liable to be charged in respect of what each member receives as his or her share of the joint income. The court
held that he was to be assessed as the Karta of the Hindu undivided family. Explaining the concept of a Hindu
undivided family and a coparcenary and the distinction between the two, the court observed that while for a
coparcenary the presence of at least two male members in the joint family is a necessary requirement, a Hindu
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CHAPTER 2 HINDU JOINT FAMILY

joint family can continue even with one male member, and accordingly in this case the son was competent to be
assessed as the Karta of his joint family.

Though every Hindu family is presumed to be a joint Hindu family yet the strength of the presumption necessarily
varies in each case.27 The presumption is peculiarly strong in the case of father and sons, 28 sons of one father29 and
also in the case of brothers30 than in case of cousins. The further one goes from the founder of the family the
presumption becomes weaker and weaker. 31 Even where one son separates from the father, the other sons, more
so in case they are minors, would be presumed to be joint with their father.32 This presumption of jointness can be
rebutted by direct evidence or by course of conduct. Thus, where an estate was originally ancestral belonging to a
joint family, the presumption of law is, that a family once joint retains that status and this presumption can only be
rebutted by evidence of partition or acts of separation. The onus probandi lies on the party who claims a share in
such estate to prove that it is a divided family33 or the one who disputes the joint status of the family.34 Where a
person claims property, as on partition, it is he who has to prove that there was a division of the joint family
estate.35 So, till some positive action is taken to effect partition of a joint family property, it would remain joint
family property.36 It is also settled that there is no presumption that when one member separates from others, the
latter remain united and whether the latter remain united or not must be decided on the basis of the facts of each
case.37

No Presumption that the Hindu Joint Family possesses Joint Property or any Property at all

A Hindu joint family is presumed to be joint in food, worship and estate, yet there is no fundamental requirement
of law that it must possess joint property. Practically it is difficult to conceive of a situation where the joint family
members are living together and yet do not have some common or joint items of property. They may not be
expensive items but a normal common habitation is indicative of common sharing of at least some household items.
Similarly, a common kitchen indicates utensils and kitchen appliances that can be shared; likewise, a common puja
room will have common things that may be owned and used by the family jointly. However, in law there is no
presumption that a joint family possesses joint family property or any property at all or that it should be of value. 38
This has to be shown by affirmative evidence. 39 Similarly, proof of existence of a joint family does not lead to the
presumption that property held by any member of the family is joint40 and the burden rests upon anyone asserting
that any item of the property was joint to establish the fact. But where it is established that the family possessed
some joint family property which from its very nature and relative value may have formed the nucleus from which
the property may have been acquired, the burden shifts to the party alleging self-acquisition to establish
affirmatively that the property was acquired without the aid of the joint family property.41

While maintaining joint family status, property can also be acquired in the name of different members individually. 42
Even where the Karta purchases property in the name of his wife it will not be presumed to be the joint family
property43 unless there is evidence that he could not have acquired the property with his income or the acquisition
of it was not in keeping with his financial position. 44 The important thing to consider is the income which the nucleus
yields. A building in occupation of the members of a family and yielding no income could not be a nucleus out of
which acquisitions could be made even though it might be of considerable value. On the other hand, a running
business in which the capital invested is comparatively small might conceivably produce substantial income, which
may, well form the foundation of the subsequent acquisitions. These are not abstract questions of law but questions
of facts that have to be determined on the facts and circumstances of each case. 45

Position when there is only One Male Member

A single male or a female cannot constitute a joint Hindu family individually even if the assets in their hands are
purely ancestral.46 Further, presence of a male member is an essential requisite to start a joint Hindu family.
However, it is not necessary that there should be at least two male members to form a Hindu undivided family as a
taxable entity or for its continuity. Where the joint family comprises a man, his son, and their wives, all of them
together would constitute a joint Hindu family. On the death of the father, the family comprising the son, his wife
and his mother would maintain the same status, viz., a single male member with female members of the joint
family can constitute a joint Hindu family.47 Similarly, where two out of three married brothers die, the surviving
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CHAPTER 2 HINDU JOINT FAMILY

brother and the widows of the deceased coparceners will continue to constitute a Hindu joint family48 and
therefore the arrears of maintenance received by a widow of the deceased coparcener will be exempt from tax
under s. 14(1) of the Act.49

One of the basic arguments against the holding that a single male member can form a joint family is that his
authority over the property in his hands, whether separate or ancestral, is absolute. He can dispose it of in any
manner he likes. He also has the capability to treat the joint family property as his separate property and thus he
should be treated as an individual for the purposes of income tax. To that Rangnekar J. said in Commissioner of
Income Tax v. Lakshmi Narayan 50 that the powers of a sole surviving coparcener over disposal of the coparcenary
property are subject to well-recognised rights of the female members of a family. The widow of a deceased
coparcener has a right to be maintained out of the family property and a right to a due provision for her residence.
An unmarried daughter has a right to maintenance and to marriage expenses. Similarly, the disqualified heirs such
as of unsound mind have similar rights. If the rights of these persons are threatened or if the holder of the estate is
dealing with the property in a manner inconsistent with or endangering the rights of these persons, he may be
restrained by a proper action from acting in that manner. Similarly, the widow of a deceased coparcener may adopt
a son to her deceased husband and he would then become a coparcener with the sole surviving coparcener. Then
expenses of religious ceremonies such as ‘Shraddha’ relating to the deceased coparceners also have to be
provided from such property. Therefore, only because there is no coparcenary it does not follow that there is no
undivided family.

Even in the absence of an antecedent history of jointness, a Hindu male can constitute a joint Hindu family with
his wife and unmarried daughter. There is an assumption that joint and undivided family is the normal condition of
Hindu society. The presumption, therefore, is that the members of a Hindu family are living in unison, unless the
contrary is established. The absence of an antecedent history of jointness between a Hindu man and his ancestors
is no impediment to his forming a joint Hindu family with his wife and unmarried daughter or with other females in
the family. ‘Those that are called by nature to live together, continue to do so’ 51 and form a joint Hindu family. A
single male may constitute an undivided family with his wife and daughter.

Continuation of a Joint Family at the Instance of Only Female Members

The term ‘continuation’ suggests the existence of a joint family in the past and the maintenance of the same status
in the present. It is different from starting or forming a joint family for the first time and therefore the conditions for
maintaining the same status are different from initiation or starting of the family. On the question whether there can
be a Hindu undivided family comprising only female members, the Apex Court has held 52 that on the
disappearance (death) of the last male member, which suggests that a male member was present in the joint
family, the other members of the family though not coparceners, continue to be members of an undivided family.
So, on the death of the sole male member of a Hindu undivided family, females who were earlier members of the
Hindu joint family are allowed to continue with that status. So long as the property that was originally of the joint
Hindu family remains in the hands of the widows of the members of the family and is not divided among them, the
joint family continues.53 The law provides that so long as it is possible in the nature of things to add a male
member to the family, a joint family does not come to an end.54 Accordingly, where the joint family comprises two
brothers with their wives, on the death of both the brothers, their two widows have the capability to add a male
member to the family if one of them was pregnant or they decide to adopt a male child; in this manner the joint
family continues. The test laid down is the potentiality of the widows to bring a male member into existence either
by nature or by law.55 In Attorney General of Ceylon v. A.R. Arunachalam Chettiar,56 a father and his son constituted
a joint family governed by the Mitakshara school of Hindu law. They were domiciled in India and had trading and
other interests in India, Ceylon and far Eastern countries. The undivided son died in 1934 and the father became
the sole surviving coparcener in the Hindu undivided family to which a number of female members belonged. The
father died in 1938 and the question to be determined was whether he died as a member of joint family or as a
separate member because under the relevant ESTATE DUTY ORDINANCE, it was provided that property passing
on the death of a member of a Hindu undivided family was exempt from payment of estate duty. Here at all
material times, the female members of the family had the right to maintenance and other rights in the property. The
widows in the family including the widow of the predeceased son also had the power to introduce coparceners in
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CHAPTER 2 HINDU JOINT FAMILY

the family by adoption though that power was exercised after the death of the father. It was held that the deceased
at his death was a member of Hindu undivided family, the same undivided family of which his son, when alive was
a member and of which the continuity was preserved after the father’s death through adoptions by the widows of
the family.

One thing is noteworthy here. All these cases involved a situation where the joint family was in existence and had
one or more male members in this family. The status of this family was determined when the male members died
and only females were left. In these cases, courts held that a joint family did not end if the females had the
capability to add a male member in the family. However, in none of the cases the claim was from the females to
form a joint family for the first time.

Continuation of Joint Family at the Instance of only Daughters

Under Hindu law the presence of a male member is not necessary for the continuation of a joint family so long as
the females who became members of the family by marriage to lineal male descendants maintain the joint status
and have the capability to add a male member to the family either by giving birth to sons or adopting a son to them.
However, where a situation is reached when it is not possible to add a male member to the family, the joint family
will come to an end, e.g., in Fig. 2.6, where the joint family initially comprised the father F his wife W, two sons S1
and S2 and their wives W 1 and W 2, and two daughters D 1 and D 2, on the death of the father, mother and the
sons, the widows in the family have the capability to add a male member in the family while remaining joint and
the family will continue as a joint Hindu family.

Fig. 2.6

On the death of both the widows when the family comprises only two daughters will the joint family come to an
end? Under the law as it stood before 1956, a daughter did not have the capability to add a male member to her
father’s joint family. Therefore, when only a daughter was left in the family, the joint family of the father ended.
The reason was that the daughter could give birth to a legitimate offspring only after her marriage and the moment
she got married, she ceased to be a member of her father’s family, and her child would be a member of her
husband’s joint family and not her father’s family. After 1956 with the permissibility of adoption of a child, male or
female57 to a single woman including an unmarried daughter, a daughter can have a legitimate son without getting
married and while remaining a member of the father’s joint family. The Hindu Adoptions and Maintenance Act,
1956 has granted an unmarried female the ability to carry on her father’s joint family by adding a male member to
the family. The reason why the child adopted by the unmarried daughter will be an addition to her father’s family is
that a child adopted by a single parent can have only one parent family e.g., where an unmarried woman adopts a
son, he will have only a mother and no father and if the mother subsequently marries, her husband will be related to
the child as his stepfather.

After the amendment of the Hindu Succession Act, in 2005, a daughter now is coparcener and can, not only
continue a joint family, but also form one with her father and brothers.

Formation of a Joint Hindu Family by Women Alone

On the death of the last male member in the family the status of joint family does not end and the females so long
as they have the capability to add a male member to the family continue as the members of the joint family.
However, such situations are to be differentiated with cases where Hindu women claim to form a joint family in the
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CHAPTER 2 HINDU JOINT FAMILY

first place in the absence of an antecedent joint family status. It is to be noted that for the starting of or for bringing
a joint family into existence for the first time the presence of a seniormost male member is an essential requisite.
On the question of the feasibility of a Hindu undivided family comprising only females, the Apex Court answered in
the negative58 and held that the concept of a Hindu undivided family formed by females only by agreement was
alien to Hindu personal law. In the case in hand, the widow and two daughters of a Hindu male governed by
Dayabhaga law, inherited his properties and the mother blended her share of the inheritance into the joint family
kitty of such an undivided family that they claimed to form. The Court held:59

We have no authority before us which can lead us to the conclusion that the assessee and her two daughters were
capable of forming a joint Hindu family or of throwing the interest of any one of them in the inherited property
therein. Concept of Hindu females forming a joint family by agreement amongst themselves appears to us to be
contrary to the basic tenets of the Hindu personal law. Even when the joint family is already in existence a female
member of the family is incapable of blending her absolute property into the joint family hotch potch.60

From the point of view of revenue statutes, the ascertainment of the status of a family whether joint or individual is
confined to certain basic questions, viz whether a person is to be assessed as an individual or as the Karta of the
joint family. If the money is spent for the maintenance of a joint family member, that can be shown as an expense
of the joint family. These issues remain the focal point of inquiry whenever there is an examination of the character
of the family for income tax purposes, while all other considerations are subsidiary. It is this difference in approach
primarily that has created a distinction between a Hindu joint family under Hindu law and a Hindu undivided
family for taxation purposes. Though it has been held by the Supreme Court that the expression ‘ Hindu undivided
family’ is to be understood in the same manner as the concept of ‘Hindu joint family’ under Mitakshara law yet the
difference in approach is inevitable. 61 This is why under the Hindu law a mother and a daughter will not constitute a
joint family and the mother cannot be a Karta of the joint Hindu family; yet for the purposes of income tax she
can be assessed as the head/manager of the Hindu undivided family.62 Similarly, the courts have held that a joint
family can exist where there are only widows or a widow and an unmarried daughter 63 so long as the property
which was originally of the Hindu joint family remains in the hands of the widows of the members of the family
and is not divided among them. 64 As aforesaid, a Hindu Joint family cannot be finally brought to an end if it is
possible to add a male member by a female by way of giving birth to a male child or through adoption. 65 However,
after the coming into force of the Hindu Succession Act, 1956, granting absolute rights of ownership to the widow,
the situation has changed. Now if a person holding property as joint family property in his hands dies leaving
behind his widow and his daughter, the property in the hands of the widow and daughter even if practically joint will
be their separate property and his widow cannot be assessed as the head of the joint family.66

Position when there are only Husband and Wife

There is a conflict of judicial opinion on the question whether a husband and wife can form a joint family. The
Supreme Court held in TS Srinivasan v. Commissioner Income Tax,67 that a Hindu undivided family comes into
existence only on the birth of a son. The case involved a situation where on the partition of the bigger joint family,
the son obtained his share. He filed his returns as an individual until he got married. His status was to be
determined when the wife was pregnant. It was held by the court that until the birth of the son, he did not form a
joint family and could be assessed only as an individual. This decision that appears to be incorrect was later
overruled by the Supreme Court in Surjit Lal’s68 case. This question, whether a Hindu male along with his wife even
before the birth of the son can form a Hindu joint family or not arose for the consideration before the Madhya
Pradesh High Court in Commissioner of Income Tax v. Vishnukumar Bhaiya.69 On exactly the same facts, the court
held that when the property was received by the assessee on partition, he was a single member and did not
constitute a Hindu undivided family. His status was that of an individual. The fact of his marriage did not alter the
position and, in the absence of a son, the personal law of the assessee regarded him as the owner of the property
received by him on partition and the income therefrom as his individual income. The Gujarat High Court, 70 also held
that a sole surviving coparcener of a Hindu undivided family is the owner of the property, and therefore even the
existence of a female member did not affect the absolute right of the male member to deal with and enjoy the
property as his own as if it was his absolute property. The character of the property that he holds as a sole surviving
coparcener is analogous to that of his exclusive property and makes him an individual rather than the head of the
 Page 11 of 21
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joint family. Rajasthan High Court has also held that a husband and wife alone cannot form a Hindu undivided
family as a wife cannot create a charge on husband’s property. 71 It is the personal obligation of the husband to
maintain the wife even though he has no property. In Seth Tulsidas Bolumal v. Commissioner of Income Tax 72 an
assessee was the karta of a joint Hindu family consisting of himself, his wife and major son. He converted some of
his individual properties as joint family property by a declaration. All these properties were assessed as income of
the Hindu undivided family. The joint family properties were partitioned five years later, between the assessee
and his son, each taking a half share i.e., the father and his wife separated from the major son. For the assessment
year subsequent to the above partition, the assessee claimed that the amounts which he paid to the smaller joint
family was not his individual income, but that of the smaller Hindu undivided family. The court repelled that
contention and held that the portion of the converted asset which fell to the share of the assessee after partition was
his individual property, notwithstanding the fact that the karta and his wife formed a Hindu undivided family. The
reasoning of the court was that, in the absence of a son, the property belonged to the Hindu male (karta) absolutely
and, therefore, the joint family had no right in the property or the income arising therefrom. The gist of the
judgment was that a Hindu male and his wife would form a joint family but the properties held by him may be his
separate properties, as that would depend on the facts and circumstances of each case.

However in Kalyanji Vithaldas’s case73 a Hindu man having a wife and a daughter claimed that the properties held
by him were joint family property and the Judicial Committee disagreeing with them observed:

It would not be in consonance with ordinary notions or with a correct interpretation of law of the Mitakshara to hold that
property, which a man has obtained from his father, belongs to a Hindu Undivided family by reason of his having a wife
and daughters‘Interest’ is a word of wide and vague significance and no doubt it might be used of a wife’s or daughter’s
right to be maintained which right accrues in the daughter’s case on birth, but if the father’s obligations are increased, his
ownership is not divested, divided or impaired by marriage or the birth of a daughter. This is equally true of ancestral
property belonging to himself alone as of self-acquired property.

They, therefore held that in all cases where the family comprised a man, his wife and daughters only or only
himself and his wife, the income falling to their shares cannot be treated as income belonging to the joint Hindu
family. Even where the sources from where the income received were ancestral but merely because the source
held by the member who received it from his father and was on that account ancestral, the income could not be
deemed for the purpose of assessment to be income of the Hindu undivided family even though a wife had rights
to be maintained under Hindu Law.

On the other hand in complete contrast to the aforesaid judgments in Narendranath’s case,74 the Supreme Court
held, almost on similar facts, that the ownership of the dividing coparcener is such that female members of the
family may have a right to maintenance out of it and, in some circumstances, to a charge for maintenance upon it
and therefore when a coparcener having a wife and two minor daughters and no son receives his share of the joint
family properties on partition, such property, in the hands of the coparcener, belongs to the Hindu undivided
family comprising himself, his wife and minor daughters and cannot be assessed as his individual property. The
Patna and Allahabad High Courts75 and recently the Gujarat High Court have also held 76 that a husband and a wife
can form a joint family all by themselves, as every Hindu family is joint until contrary is proved. Where a
coparcener obtains property on partition and then subsequently marries, the status of the property that he holds is
either ancestral or joint family property. According to the Karnataka High Court in such a situation the property in
the hands of such a person will be joint family property because if he gets a wife, he will be burdened with an
obligation to maintain her and if he later begets a son the character of the property will again be termed as joint
family property. If he begets only daughters, the burden of maintaining them will be fastened on the property.
According to the reasoning of the Karnataka High Court, even in the hands of a single male, the character of the
property is that of coparcenary property as he is given the title of a sole surviving coparcener. The Supreme Court
has held77 that as far as the obligation to maintain the wife is concerned, the obligation is personal as well as with
respect to the property of an individual and therefore the obligation to maintain the wife extends with respect to the
personal property of the husband. The court said that as far as the self-acquired property of an individual is
concerned, he has to be assessed as an individual even though he with his wife and daughters constitutes a joint
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family. In other words the character of the family may differ from the character of the property it may possess. The
family may be a joint family but the property that its head may possess may be his separate property. Therefore,
what the court said was not that a Hindu male with his wife cannot constitute a joint family but that with respect to
his separate property he has to be assessed as an individual. There can therefore be a joint family comprising a
man and his wife.78

The Supreme Court further held,79 that the property which a coparcener obtains on partition does not become for all
times his individual and separate property. If he has a wife or a daughter depending on him the property will be
charged by the obligation to maintain them. If he marries later, his ancestral or self-acquired property will be
burdened by an obligation to maintain his wife. If he begets a son, that son becomes entitled to a share in the
property which thereby revives the character of a joint family property. If he begets only daughters, the obligation
to maintain them will be fastened on the property. It is not as if an unmarried Hindu male obtaining a share of
ancestral property in partition retains property as his absolute property even after marriage, encumbered by any
obligation to maintain his wife or other dependants. In that absolute sense, it may not be his absolute property after
he marries. It sheds the character of separate property and revives its character as joint family property of the
smaller unit consisting of himself and his wife. The obligation is with respect to the ancestral property only and not
with respect to the separate or self acquired property.

Conclusion

In both the conflicting opinions, the arguments are as follows. The authorities that subscribe to the view that a man
and his wife alone cannot form a joint family even if the husband receives a share from the property by virtue of
being a coparcener, rely on the argument that as a sole surviving coparcener, he has absolute powers of disposal
over it and therefore his ownership is akin to separate ownership. Meanwhile, the other view is that though he may
for the time being be treated as having an absolute ownership over the property yet the females have a right of
maintenance out of this property and this differentiates his ownership from the one that he may have over his
exclusive or personal property where, though he has an obligation to maintain the female dependants, it remains a
personal obligation and is not with respect to his separate property.

The primary question here is not whether a man and his wife can form a joint family but it is whether the husband
here can be assessed in the capacity of the Karta of a Hindu undivided family with respect to the property that he
possess which is to be assessed presently. Therefore, the character of the property becomes the focal point of the
investigation. According to the court, if a man receives property after a partition of the joint family of which he was
previously a member, and gets married then even where no child is born, he is to be assessed with respect to that
property as the Karta of a Hindu undivided family. However, if this person is not only married but also has a
daughter, then with respect to his separate property or self-acquired property he is still to be assessed as an
individual. So the character of the property in his hands will determine how he is to be assessed and not the fact
whether he has a son or not, as even in the presence of a son he is to assessed as an individual with respect to his
separate properties.

Two basic arguments have been used here. One is the right of a sole surviving coparcener over this property and
the other is the maintenance right of females over this property. Both the arguments have substance in themselves
but cannot and should not be used in isolation. If seen in isolation they will lead to contradictory conclusions. The
right of maintenance cannot be ignored as ignoring it will only create confusion; therefore both have to be seen
together to make the law certain.

It is true that under Hindu law a Hindu male receiving property on partition in absence of a son holds it as his
separate property till a son is born but he is always described as a sole surviving coparcener in relation to his share.
The son on birth becomes a coparcener having an equal interest in this property with the father and it is the
conception of the son who is subsequently born alive that restricts or puts limitations on the power of the father to
dispose of the property in any manner he likes. However, till the birth of the son a Hindu male has no impediments
on his power of sale of the property. On his death, the property will go by inheritance to the heirs and not by
survivorship, survivorship being an essential feature of ancestral/coparcenary/joint family property. The question
 Page 13 of 21
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arises, can the property that goes by inheritance on the death of the holder (owner) of this property and not by
survivorship be termed as joint family property? The birth of a son would clearly determine the character of a
property as joint family property but should future possibilities or eventualities have a bearing on the decision and
assessment at present? The situation has to be viewed in light of what is the character of the property and
composition of the family presently and not what may happen in future. Thus, presently as the situation stands,
absolute powers of disposal, no right of partition in favour of anyone, and application of laws of inheritance make it
look like separate property in contrast to the collective ownership and consequent restrictions on alienation and
application of doctrine of survivorship, the essential distinguishing features of the two kinds of properties. However,
a surface reading of these distinguishing features can lead to an erroneous assumption. Except for the fact that
nobody can demand a partition of this property, the other two terms viz, powers of disposal and heritability of the
property cannot be the decisive factors as their consequences vary depending upon whether the property was the
separate property of an individual or whether it was previously joint and now in the hands of a sole surviving
coparcener. Where separate property is inherited, the heirs get it without any charge over it. But where the property
of the sole surviving coparcener is inherited and there were females present in the family who had a claim of
maintenance over this property the heirs getting the property are under an obligation to maintain them out of this
property. So the argument that there is a difference between the self acquired property of an individual and the one
obtained on partition in the capacity of a sole surviving coparcener as far as the right of the maintenance of the
female members is concerned has substance and in fact it is this difference that makes the assessment of the
property in the hands of a married Hindu male as the Karta of the joint family property. The mother, wife and a
daughter have a right to claim maintenance from a Hindu male irrespective of the kind of property he possesses.
The right is therefore not limited to joint family property. It means that if there is no joint family property, the rights
of maintenance are not non-existent. They can be exercised even against the self-acquired property of an
individual. Therefore, maintenance is both a personal as well property obligation. However, there is a difference
here between the rights that a female can exercise against the separate property in the hands of a Hindu male and
the property that he may receive on partition from an earlier joint family. A female claiming maintenance from a
Hindu male when he has self-acquisitions will proceed against him personally and the question whether he has
property or not will be seen at the time of granting of maintenance. Nevertheless, if he has property that he had
received on partition a female has the capacity to enforce her rights of maintenance against this property. Further,
no female can prevent a Hindu male from alienating his self-acquired property or can force him to make a provision
for her maintenance before he sells it. But, where the property was received by a Hindu male on partition from the
joint family of which he was a member earlier, and there is a wife or a daughter, they have a right of maintenance
from this very property. If the man decides to sell such property, he has to make provisions for their maintenance
out of it or independently. Where he tries to sell the property without making any provision for them, the court may
at the instance of these females, direct him to make an adequate provision for them and then only transfer it. Where
a sole surviving coparcener transfers property without the matter going to the court and without making a provision
for the female dependants, the rights of maintenance can be exercised even against a transferee who takes it with
actual or constructive notice of their claim against this property. For that certain conditions need to be satisfied viz:

(i) that these females are denied maintenance by the Hindu male;
1ii) they are incapable of maintaining themselves;
1iii) the property has been transferred without making any arrangements for their maintenance;
1iv) the transferee takes the property with actual or constructive notice of their rights of maintenance.

The position can be summed up as follows: where a man has both his self-acquisitions as well as property that he
obtains after a partition, female dependants if they file a claim against him for maintenance, can be granted
maintenance from either of these properties. If he attempts to sell any of these properties before such a claim is
filed, they cannot prevent him from doing so but can sue him for making a provision for them and once the property
goes out of his hands by a voluntary transfer to a third party, then again the difference surfaces. If it is the
personally acquired property they cannot proceed against the property but if it is one that is received by him on
partition they can enforce their claim of maintenance against it.

Secondly, property in the hands of a sole surviving coparcener on his death goes to his legal heirs burdened with
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CHAPTER 2 HINDU JOINT FAMILY

an obligation to maintain those female members who have such a right but where self-acquired property is
inherited, there is no such obligation. This argument shows that there is a difference between the two kinds of
properties. Confining the case to a husband and wife, an individual getting a share in the property at partition will
not constitute a joint family as he is single and a plurality of persons is required for the same. When he gets
married, he and his wife will form a family of which both of them are members. Even before the birth of any child let
alone a male child, the moment he marries, the wife acquires a right of maintenance out of the property that he
obtains on partition and a right of residence in this property if it comprised a house. In case of a denial, she can
enforce maintenance and residential rights as against this property so long as she is married. She can proceed
against the husband personally also but her maintenance rights are more secure against the joint family property.
Therefore the view that an individual receiving property on partition and getting married and having no son but
daughters or no child at all is to be assessed as the Karta of the joint family, appears to be correct. However, for
that, the property, which is to be treated as the undivided property of the joint family, must have been held earlier
by the coparcenary in which a member of that family was a coparcener. If the property is included in the joint
family property for the first time, to be called a joint family property there should be at least two male members. 80

WHETHER ‘HINDU UNDIVIDED FAMILY’ AND ‘JOINT HINDU FAMILY’ IS

SAME

In revenue statutes, the expression ‘Hindu Undivided Family’ has been used. This appears slightly different from
the term ‘Joint Hindu Family’ under Hindu law. Section 2(9) of the Indian Income-tax Act, 1922 defines a ‘person’
to include, inter alia, a ‘Hindu undivided family.’ A Hindu undivided family is a taxable unit for the purposes of
income tax and super-tax. The expression ‘Hindu undivided family’ finds reference in various provisions of the Act
but this expression is not defined in the Act. The reason for the omission according to the Supreme Court is that the
expression has a well-known connotation under Hindu law and being aware of it, the legislature did not want to
define the expression separately in the Act. Therefore, the expression ‘Hindu undivided family’ must be construed
in the sense in which it is understood under Hindu law.81 The Supreme Court82 has said that there is nothing in the
scheme of the Wealth Tax Act also to suggest that it is different from joint Hindu family and therefore a joint
Hindu family and undivided family are synonymous terms. However in a recent decision the Rajasthan High Court
made an interesting observation:83

There is no such thing as HUF’s property. In fact the subject index of Mulla’s Hindu law which deals with nearly every
matter discussed in the book does not refer to any such thing as HUF or the Hindu undivided family much less property
belonging to such a family.

Even in light of the Supreme Court’s observation that the expressions ‘Hindu undivided family’ and ‘Hindu joint
family’ are synonymous, there are some basic differences between the two:

(i) One of the basic presumptions under Hindu law is that every Hindu family is presumed to be a joint
Hindu family until contrary is proved. There is no such assumption under the taxation laws for a Hindu
family. On the other hand, this is the main point of contention.
1ii) Under Hindu law though there is a presumption that every Hindu family is a joint family there is no
presumption that it owns joint family property. Therefore, under Mitakshara law there can be a joint
family without joint family property. However, the concept of Hindu undivided family under the revenue
laws is linked only with the property. The concept of a Hindu undivided family without owning any property
is meaningless as far as its assessment is concerned.
1iii) Under Hindu law, a son in the womb of his mother in many aspects is treated as equal to a son in
existence. He can also restrict the rights of a sole surviving coparcener to alienate the property, yet for the
purposes of revenue laws, such a son is not taken into cognizance till he is actually born alive.
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CHAPTER 2 HINDU JOINT FAMILY

1iv) The very purpose for which the expression Hindu joint family or Hindu undivided family is understood by
these two legal branches, viz. the revenue authorities and Hindu law, are different. The importance of the
difference lies in the fact that for the purposes of super tax a person will be allowed a larger exemption if he
is taxed as the manager of a joint Hindu family than, if he is taxed as an individual. 84 For imposition of tax,
whether a person is to be assessed as an individual or as the Karta of a joint family is the primary
consideration. If the money is spent for the maintenance of a joint family member that can be shown as an
expense of the joint family. Thus this remains the focal point of inquiry whenever there is an examination
of the character of the family for revenue purposes. All other considerations are subsidiary.
1v) These differences in approach have created a distinction between a Hindu joint family under Hindu law
and a Hindu undivided family for taxation purposes. This is the reason why under Hindu law there cannot
be a joint family consisting only of a mother and a daughter and the mother will not be a Karta of this
Hindu family; yet for the purposes of income tax she can be assessed as the head/manager of the Hindu
undivided family.85 Under Hindu law, to understand the concept of Hindu joint family, its composition and
its unique feature has multifarious purposes. Concept of Hindu joint family is the starting point of
understanding the Hindu law of ownership and devolution of ancestral property, the rights and obligations
of its various members, rights of survivorship in this property, rights and modes of partition and the
ascertainment of their shares. The concept of joint family also has a bearing on succession laws and the
power of a member to dispose of his share inter vivos or through a Will. The purposes are beyond
comparison. In complete contrast to the narrow object under the revenue laws the joint family concept
under Hindu law is the starting point of a fully developed separate branch of law altogether.

LAW APPLICABLE TO MATRIARCHAL FAMILIES

The Mitakshara law of joint family is founded upon agnatic relationship, the undivided family is characterised by
community of interest and unity of possession among persons descended from a common ancestor in the male line.
The principal incident of matriarchal families is that descent is traced through a female ancestress. In South India,
a woman with all her children forms a ‘Tarvad’—an institution akin to joint family under the Mitkashara law. The
members of a Tarvad live in commensality with joint rights to property86 by birth.87A male descendant is a member
of the Tarvad of his mother but his children are not. They belong to the Tarvad of their mother. A female member
does not change her Tarvad upon her marriage. The rules of survivorship govern the devolution of property of any
member of Tarvad. Property is jointly owned and managed by all members of the Tarvad but more specifically by
the eldest male member called ‘Karnavan’. However, he does not have any better rights in the property in
comparison to other members in the family, as he is neither empowered to sell the property nor to represent the
family. Under the customary Marumakkattayam law no partition of the family estate may be made as no individual
could claim any property as his or her own, but items of the family property may by agreement be separately
enjoyed by the members. On death, the interest of a member in the Tarvad devolved by survivorship. It is neither an
essential condition nor a practice that all members of the Tarvad should live together. A woman of a particular
Tarvad with her descendants can establish a different home; such a branch is known as ‘Tavazhi’. Women have an
interest in the Tarvad properties besides having independent or individual properties. Changes in the pattern of
Tarvad were witnessed with the advent of the British. A Tarvad was defined as an impartible and corporate unit by
the East India Company officials whose main interest in these matrilineal groups of South India that were a
prominent land owing group was imposition of revenue related laws and regulations. These sets of rules and
regulations were based on the pattern of patriarchal families and for sheer convenience of dealing with a man, they
gave prominent importance to Karnavan making his position superior to that of anyone else in the family.
Unawareness of the customs of the matrilineal societies led to the British carrying out various experiments with
these societies. They applied the English common law and Roman law principles, principles of equity, and the
patriarchal norms over these families completely distorting the concept in the process. In 1810, the provincial court
ruled that an undivided share of an individual in a Tarvad could be sold for debt contracted by him. In other words,
the impartible share was made not only partible but also alienable. In 1814, the Sadar Court conferred proprietary
rights on the Karnavan by applying the custom of the patriarchal Namboodris. It resulted in the gradual deterioration
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in status of women. Unable to comprehend the unique features governing matrilineal societies, the British
encroached them with patriarchal norms and the Kerala Joint Family Abolition Act, 1975, finally brought these
families to an end. Their right to the Tarvad property was brought to an end and the existing members held it as
tenants-in-common. The concept of gender parity was maintained with men and women in the family having equal
rights over the property.

The primary difference between the Mitakshara system of inheritance and the Marumakkattayam and Aliyasantana
laws lies in the former following the patriarchy and the latter adhering to the matriarchy, i.e., tracing descent from a
common ancestress.88

COMPOSITE FAMILIES

In certain communities particularly in Andhra Pradesh, there is a custom of existence of composite families. The
culture of composite families arises by agreement between the families and the primary objective is convenience
and efficient management of the family properties. When two or more families live together, work together, pool in
their resources and labour and throw their gains of labour into a common stock, they are called composite
families.89 A long duration such as living together of a few generations can in itself raise a presumption of merger of
various families into composite families.90

RIGHTS OF MEMBERS OF JOINT HINDU FAMILY

In a Hindu joint family, all its members do not have equal rights. The interest in the coparcenary property is with
the coparceners, including a right to demand its partition, and a right to challenge its unauthorised alienation made
by Karta. All other female members including the widows of deceased coparceners, male members beyond four
generations, disqualified coparceners, and illegitimate sons of lineal male descendants, have a right of maintenance
out of the joint family funds and a right of residence in the joint family home. The right of residence cannot be
enforced as a matter of right if any member, including a coparcener has proved to be a nuisance to the other family
members and his continued residence in the family will adversely affect the interests of the other members or
disturb the peace of the family. In such cases, the Karta can hand him his share and throw him out of the family.
Unmarried daughters in the family also have a right to be married out of the joint family funds.91

LEGISLATIVE INROADS INTO THE CONCEPT OF JOINT FAMILY

One of the basic incidents of the concept of joint family is the existence of joint as well as separate property in the
family. In a joint family property, the son has a right by birth while the daughter though a member of the family till
her marriage, was not a coparcener and had no interest in the coparcenary property. At the time of the discussion
on the Hindu Succession Bill in the Parliament in 1954–55, several parliamentarians recommended its abolition as
it treated women unfavourably, but a considerable majority favoured its retention in the name of it symbolising the
very essence of Hindu religion. In order to give better rights to women in the joint family property without
abolishing it, the concept of notional partition was introduced in the Hindu Succession Act but the result was still an
unequal treatment to women. In the light of the constitutional mandate of gender parity, these property-related
provisions stood out as discriminatory and to remove that, two options were available with the legislature. First, to
abolish the joint family and separate property distinction by abolishing the very concept of joint family system and
the other to make the daughter also a coparcener in the same manner as a son with a right by birth in the
coparcenary property. The Kerala legislature opted for the former and passed the Kerala Joint Hindu Family
(Abolition) Act in 1975. The enactment was equally applicable to matriarchal families and also to patriarchal
 Page 17 of 21
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families governed by the Mitakshara law.

THE KERALA JOINT HINDU FAMILY (ABOLITION) ACT, 1975

The Kerala Joint Hindu Family (Abolition) Act received the assent of the President on 10 August 1976. It was
enacted to abolish the joint family system among Hindus in the State of Kerala. It applied to both undivided
families governed by Mitakshara law192 as well as matriarchal families including a Tarvad or Thavazhi,293 a
Kutumba or Kavaru394 or an Illom.495 The Act abolished the right by birth of the coparceners5 96 and replaced joint
tenancy by tenancy in common.697Therefore on the date of the coming into force of this Act it was to be presumed
that, a partition had taken place in every family and each person who was earlier entitled to get a share was
deemed to hold his share as his distinct, separate and absolute property.7 98 If under the custom a female was
entitled to ask for partition or was to be granted a share in the property in lieu of her maintenance or marriage
expenses, then only she was entitled to a share in the property.8 99 The Act also safeguarded the right of those
members of the family who were not coparceners and were not entitled to get a share. Their right of residence in
the erstwhile joint family house, and the right of maintenance and even marriage expenses or payment of funeral
expenses out of the erstwhile joint family funds were protected.9100The Act also abolished the pious obligation of
the son to repay the debts of the father, paternal grandfather or the paternal great grandfather.10 101 However since
the Act is prospective in application and not retrospective it did not apply to debts contracted by the father, father’s
father or father’s father’s father before the passing of the Act. Thus the liability of the joint family members for
debts contracted before the Act remained unaffected.11 102 In State of Kerala therefore, the concept of joint family
does not exist. All families are separate or nuclear families. The head of the family even where all the members
are living together for the sake of convenience has to be assessed as an individual and not as the head of a joint
family. The right of inheritance has replaced the doctrine of survivorship in which the daughters have equal share
with the sons.

1. While in the state of Kerela the concept of joint family has been abolished, four states to begin with introduced
unmarried daughters as coparceners. The Hindu Succession Amendment Act has brought equality and presently a
daughter and a son are members of their father’s joint family in an identical manner. For detailed discussion, see infra.

2. Surjit Lal v. Commissioner of Income Tax, (1978) 101 ITR 776.

3. Gur Narain Das v. Gur Tahal Das, AIR 1952 SC 225 [LNIND 1952 SC 34]; Vellaiyappa Chetty v. Natarajan, AIR 1931
PC 294 : 61 Mad LJ 522.

4. Srinivasan v. Commissioner of Income Tax, 1962 Mad 146 .

5. Sudarsanam Maistri v. Narasimhulu Maistri, (1902) ILR 25 Mad 149, 154.

6. Ganasvant Bal Savant v. Narayan Dhond Savant, (1883) ILR 7 Bom 467, 471.

7. Tek Bahadur Singh v. Devi Singh, AIR 1966 SC 292 .

8. See The Special Marriage Act, 1954, s. 19.

9. See The Caste Disabilities Removal Act, 1850, s. 3.

10. K. Devabalan v. M. Vijayakumari, AIR 1991 Ker 175 [LNIND 1990 KER 253]. See also Rose Marie v. WTC, 1970 Mad
249 wherein it was held that the son of a Hindu father and a Christian mother married under the Special Marriage Act
will be a member of his father’s joint family. However see also Lingappa Goudan v. Esudasan, ILR 27 Mad 13, where
the plaintiff was not regarded as a Hindu as his mother was a Christian.

11. For details see Poonam Pradhan Saxena, ‘Validity of Inter-religious marriages under Hindu Law’, 14 Del Law Rev,
1992, p. 128.

12. Bhupatrai Hirachand v. Commissioner of Income Tax, (1977) 109 ITR 97 (Cal); Krishna Prasad v. Commissioner of
Income Tax, Bangalore, (1974) 97 ITR 493.
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13. CED v. Harish Chandra, (1987) 167 ITR 230 (All); Rameshwar Mistry v. Bebulal Mistry, AIR 1991 Pat 53 .

14. Commissioner of Income Tax v. Govinda Ram Sugar Mills, AIR 1966 SC 240 ; Pushpa Devi v. Commissioner Income
Tax, AIR 1977 SC 2230 [LNIND 1977 SC 258]; see also Desappa Setty v. Vedavathamma, AIR 1972 Mys 283 ;
Rajendra Nath v. Shiv Nath, AIR 1971 All 448 ; CED v. Harish Chandra, (1987) 167 ITR 230 (All); Rameshwar Mistry v.
Bebulal Mistry, AIR 1991 Pat 3 ; Sabitri v. FA Savi, AIR 1933 Pat 306 ; Punna Bibi v. Radha Kissen, (1904) 31 Cal 476;
Commissioner of Income Tax v. Govinda Ram Sugar Mills, AIR 1966 SC 240 ; Kanji v. Permanand, AIR 1992 MP 208
[LNIND 1991 MP 172]; Seetha Bai v. Narasimha, (1945) Mad 568; Seethamma v. Veerana, (1950) Mad 1076; Maguni
Padhano v. Lakananidhi, AIR 1956 Ori 1 wherein it was held that the mother cannot act as Karta; Sushila Devi v.
Income Tax Officer, AIR 1959 Cal 697 [LNIND 1959 CAL 117]; Hira Singh v. K. Mangla, AIR 1928 Lah 122 ; Sitla
Prasad v. Sri Ram, (1944) Luck 450; Gangamma v. Kuppammal, 1939 Mad 139 ; Commissioner of Income Tax v.
Pannbai, AIR 1913 Nag 160 .

15. Deshnath Rao v. Ramchander Rao, AIR 1951 Bom 143 .

16. Gur Narain Das v. Gur Tahal Das, AIR 1952 SC 225 [LNIND 1952 SC 34]; Vellaiyappa Chetty v. Natarajan, AIR 1931
PC 294, 61 Mad LJ 522.

17. Ram Kumar v. Commissioner of Income Tax, AIR 1953 All 150 .

18. Suraj Bansi Koer v. Sheo Persad, (1874) 14 Beng LR 188, 195.

19. Chotelal v. Jhandelal, AIR 1972 All 424 .

20. Ibid.

21. State Bank of Travancore v. Aravinan Kunju Panicker, AIR 1971 SC 996 ; Jagannath v. Lakhanath, AIR 1981 Ori 51 ;
Basittappa v. Irawwa, AIR 1988 Kant 174 [LNIND 1987 KANT 190]; Jugal v. Gobind, AIR 1992 Pat 128 ; Radhamoni v.
Dibakar, AIR 1991 Pat 15 ; Bhagwan Dayal v. Reoti Devi, AIR 1962 SC 287 [LNIND 1961 SC 465].

22. Raghavamma v. Chenchamma, AIR 1964 SC 136 [LNIND 1963 SC 101]; Govind Darsu v. Kuldip Singh, AIR 1971 Del
151 [LNIND 1970 DEL 60]; Charandassi v. Kanailal, AIR 1955 Cal 205 ; Rukmabai v. Laxmi Narayan, AIR 1960 SC
335 [LNIND 1959 SC 205].

23. Sri Raghunada v. Brozon Kishor, (1876) 1 Mad 69, 89, 3 IA 154; Dulachand v. Certificate Officer, (1964) 68 CWN 349;
Neelkisto Deb v. Beerchunder, (1869) 12 MIA 523, 540; Katha Perumal v. Rajendra, 1959 Mad 409 .

24. Chowdhary Ganesh Dutt v. Jewach, (1904) 31 IA 10.

25. Indoor Kuer v. Pirthipal Kuer, AIR 1945 PC 128 .

26. V.M. Patel v. K.M. Patel, AIR 2000 NOC 74 (Guj).

27. Mathuri Bewa v. Prafulla Routrey, AIR 2003 Ori 136 [LNIND 2003 ORI 140]; Panchani Singh v. Rani Raj Rajeshwari
Devi, 1970 All LJ 983 (DB).

28. Nageshar Baksh Singh v. Ganesha, AIR 1920 PC 46 .

29. Nazi v. Mohanlal, AIR 1957 Raj 28 [LNIND 1956 RAJ 195](DB).

30. Inder Kuer v. Pirthipal Kuer, AIR 1945 PC 128 ; Ramgopal v. Mohanlal, AIR 1960 Punj 226 ; Chandeswar Singh v.
Ram Chandra Singh, AIR 1973 Pat 315 ; Rukmabai v. Lala Lakshminarayan, AIR 1960 SC 335 [LNIND 1959 SC 205];
Kanhaya Lal v. Devi Dayal, AIR 1936 Lah 514 ; Moro Vishwanath v. Ganesh Vithal, (1873) 10 Bom HC 444, 468; Muna
Mahto v. Raghunath, AIR 1933 Pat 153 ; Indranarayan v. Roopnarayan, AIR 1971 SC 1962 [LNIND 1971 SC 305].

31. Harprasad v. Ram Devi, AIR 1964 All 64 [LNIND 1962 ALL 191].

32. Chandeswar Singh v. Ram Chandra Singh, AIR 1973 Pat 315 ; Jaai Kishore v. Govind Singh, AIR 1920 Pat 128 ;
Cheetha v. Baboo Miheen Lal, (1867) 11 MIA 369 reaffirmed in Shankarrao Dajisaheb Shinde v. Vithalrao
Gangapatrao Shinde, AIR 1989 SC 879 .

33. Bannoo v. Kashee Ram, ILR 3 Cal 315 (PC); Bharat Singh v. Bhagirathi, (1966) 2 SCJ 53 [LNIND 1965 SC 204];
Girijanadini v. Birendra, AIR 1966 SC 1124 .

34. Naragunty Lutchmeedavamab v. Vengama Naidoo, (1861) 9 MIA 66.

35. Commissioner of Income Tax, Assam v. Nand Lal Agarwal, AIR 1966 SC 899 [LNIND 1965 SC 316].

36. Bhagwan Dayal v. Reoti Devi, AIR 1962 SC 287 [LNIND 1961 SC 465].
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37. Mathuri Bewa v. Prafulla Routrey, AIR 2003 Ori 136 [LNIND 2003 ORI 140]; Jankiram v. Nagamony, 1926 Mad 273 ;
Laldas v. Motidai, (1908) 10 Bom LR 175; Pandit Mohan Lal v. Pandit Ram Dayal, AIR 1941 Ori 331 ; Rai Shadilala v.
Lal Bahadur, AIR 1933 PC 85 ; Nisar Ahmed Khan v. Raja Mohun Manucha, AIR 1940 PC 204 .

38. Janakiram v. Nagamony, (1926) 49 Mad 98.

39. Babu Nisar Ahmad Khan v. Babu Raja Mohan Manucha, AIR 1940 PC 204 .

40. Shadilal v. Lal Bahadur, AIR 1933 PC 85 ; Baishnas v. Baiadhser, (1973) CWR 993; Appalaswami v.
Suryanarayanmurthy, AIR 1947 PC 189 .

41. Selyaraj v. Radhakrishna, 1976 Mad 156 .

42. Patrama v. Bahadur, AIR 1983 All 346 .

43. Savitri v. Jiwan, AIR 1960 Pat 48 ; Chandreswar v. Ramchandra, AIR 1973 Pat 215 ; Prabhalila v. Sakuntala, AIR 1986
Pat 1 ; Shyamlal v. Madhusudan, AIR 1959 Cal 380 [LNIND 1958 CAL 205].

44. Ananda v. Suman, AIR 1988 Cal 375 [LNIND 1988 CAL 73].

45. Srinivas Krishnarao Kango v. Narayan Devi Kango, AIR 1954 SC 379 [LNIND 1954 SC 52].

46. Gowli v. Commissioner of Income Tax, Mysore, AIR 1966 SC 1521 .

47. Commissioner of Income Tax v. Laxmi Narayan, AIR 1935 Bom 412 ; Anant v. Shanker, 70 IA 232 : AIR 1943 PC 196 .

48. Commissioner of Income Tax v. Sarwan Kumar, (1945) ILR All 509; Draupadi v. Vikram, (1938) ILR Nag 88; Anant v.
Shankar, (1944) 70 IA 232; Baji Rao v. Ram Krishan, (1941) ILR Nag 707.

49. Vedathanni v. Commissioner of Income Tax, 56 Mad 1.

50. Commissioner of Income Tax v. Laxmi Narayan, AIR 1935 Bom 412 .

51. Surjit Lal v. Commissioner of Income Tax, (1978) 101 ITR 776.

52. Commissioner of Income Tax v. Sarwan Kumar, 13 ITR 361.

53. Commissioner of Income Tax v. Verappa Chettiar, 76 ITR 467.

54. Attorney General of Ceylon v. Arunachalam Chettiar, (1957) AC 540.

55. Ashok Kumar Ratanchand v. Commissioner of Income Tax, (1990) 186 ITR 475; BKD Bhatia v. Commissioner of
Income Tax, (1993) 199 ITR 190 (Ker); Krishna Prasad v. Commissioner of Income Tax, (1970) 75 ITR 526; Prem
Kumar v. Commissioner of Income Tax, (1980) 120 ITR 347 (All). For a contrary opinion see Commissioner of Income
Tax v. Vishnu Kumar Bhaiya, (1983) 142 ITR 357 (MP); Shankar Lal v. Budhia, (1987) 165 ITR 380 (Patna).

56. (1957–34) ITR Supp 42.

57. See The Hindu Adoptions and Maintenance Act, 1956, s. 14(4).

58. The Commissioner of Income Tax v. Sandhya Rani Dutta, JT 2001(3) SC 163 [LNIND 2001 SC 513].

59. Ibid., para 11.

60. Pushpa Devi v. Commissioner of Income Tax, 109 ITR 730.

61. For details, see the discussion, infra.

62. Rukmini Bai v. Commissioner of Wealth Tax, AIR 1964 Orissa 274 (DB).

63. Krishna Prasad v. Commissioner of Income Tax, Bangalore, (1974) ITR 493 (SC).

64. Mangala v. Jayabai, AIR 1994 Kant 276 [LNIND 1994 KANT 84].

65. Anant Bhikkappa Patil v. Shankar Ramchandra Patil, AIR 1943 PC 196 .

66. See The Hindu Succession Act, 1956, ss. 8–13.

67. (1966) 60 ITR 36 (SC), [1966] 2 SCR 755.

68. Surjit Lal v. CIT, (1978) 101 ITR 776.

69. (1983) 142 ITR 357.

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70. Anilkumar B Laskari v. Commissioner of Income Tax, (1983) 142 ITR 831.

71. Mukut Bihari Lal Bhargava v. Commissioner of Income Tax, (1964) 53 ITR 613.

72. (1980) 170 ITR 1.

73. AIR 1937 PC 36 .

74. NV Narendra Nath v. Commissioner, Wealth Tax, AIR 1970 SC 14 [LNIND 1969 SC 101].

75. CWT v. Panna Lal Rastogi, (1974) 96 ITR 110 (Patna HC); Prem Kumar v. Commissioner of Income Tax, (1980) 121
ITR 347 (All HC).

76. Commissioner of Income Tax v. Parshottamdas K. Panchal, (2002) 170 Taxation 653 Gujarat, (2002) 257 ITR 96
[LNIND 2001 GUJ 40] (Guj); Commissioner of Income Tax v. Madan Lal Parikh, (2002) 123 Taxman 603 Raj, (2002)
168 Taxation 525 Raj, 2002 (175) CTR 277 Raj. See also Bharat Kumar Chinubhai v. Commissioner of Income Tax,
(1969) 71 ITR 1; CWT v. Harshadlal Manilal, (1974) 97 ITR 86; WPAR Rajagopalan v. CWT, (2000) 241 ITR 344
[LNIND 1998 MAD 1247] (Mad); Commissioner of Income Tax v. Arun Kumar Jhunjhunwalla and Sons, (1997) 223 ITR
45 (Gau); Balkrishna Goyal v. CWT, (1996) 218 ITR 671 (MP); Commissioner of Income Tax v. Krishna Kumar, (1983)
143 ITR 462; Apporva Shantilal Shah v. Commissioner of Income Tax, (1983) 141 ITR 558; Atul Kumar Ramanlal, ITA
reference no. 178/Ahd of 1984.

77. Surjit Lal v. CIT, (1978) 101 ITR 776; CIT v. SP Chopra, (1991) 191 ITR 455 (Del).

78. Ibid.

79. Ibid.

80. Commissioner of Income Tax v. Parshottamdas K. Panchal, (2002) 170 Taxation 653 Gujarat : (2002) 257 ITR 96
[LNIND 2001 GUJ 40](Guj).

81. Commissioner Income Tax v. Arun Kumar Jhunjhunwalla, (1997) 223 ITR 45 (Gau); Gomedalli Laxminarayan
(deceased) v. Commissioner of Income Tax, Bombay, 8 ITC 239 (see particularly the judgment of Rangnekar J. at p.
244) 3 ITR 367, 369–370, AIR 1935 Bom 412 .

82. NV Narendra Nath v. Commissioner Wealth Tax, AIR 1970 SC 14 [LNIND 1969 SC 101]; Surjeet v. Commissioner of
Income Tax, Bombay, AIR 1976 SC 109 [LNIND 1975 SC 386]: (1978) 101 ITR 776 and earlier in Gowli v.
Commissioner of Income Tax, AIR 1966 SC 1521 .

83. Commissioner of Income Tax v. Madan Lal Parikh, 2002 (123) Taxman 603 (Raj) : 2002 (175) CTR 277.

84. Commissioner of Income Tax, Bombay v. Gomedalli Lakshmi Narayan, AIR 1935 Bom 412 .

85. Sushila Devi v. Income Tax Officer, AIR 1959 Cal 697 [LNIND 1959 CAL 117].

86. V. Venugopala Ravi Varma Rajab v. Union of India, AIR 1969 SC 1094 [LNIND 1969 SC 93].

87. Mayne, Hindu Law and Usage, 12th edn., (ed. Kuppuswami), 1986, p. 972.

88. Kalliani Amma v. Govinda Menon, (1912) 35 Mad 648; Kabakani Kama v. Siva Sankaran, (1910) 20 MLJ 134 [LNIND
1909 MAD 207].

89. Anchuru v. Gurijala, AIR 1961 AP 434 .

90. Kakrala Subbayya v. Makkena Sitaramamma, AIR 1959 AP 86 [LNIND 1957 AP 124]. See also Allareddi Subbamma
v. Nallapareddi Adi Lakshmamma, 22 MLJ 260; Veerappa v. Venkayya, AIR 1961 AP 534 [LNIND 1960 AP 294];
Venkata Subbareddy v. Pitichamma, 1960 ALT 383.

91. With respect to the rights of Karta and coparceners, see the discussion infra.

92 See The Kerala Joint Hindu Family (Abolition) Act, 1975, s. 2(4).

93 Governed by the Madras Marumakkattayam Act, 1932; The Travancore Nayar Act, 1100; The Travancore Ezhava Act,
1100; The Nanjinad Vellala Act of 1108; The Travancore Kshatriya Act, 1108; The Travancore Krishnavaka
Marumakkattayam Act, 1115; The Cochin Nayar Act, 1113 or The Cochin Marumakkattayam Act, 1113.

94 Governed by the Madras Aliyasantana Act, 1949.

95 Governed by the Kerala Nambudiri Act, 1958.

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96 See The Kerala Joint Hindu Family (Abolition) Act, 1975, s. 3.

97 Ibid., s. 4. See also Dharmambal v. S. Lakshmi Ammal, AIR 2003 NOC 117 (Ker) : 2002 AIHC 3399.

98 WTO v. K. Madhavan Nambiar, (1988) 169 ITR 810; CWT v. PM Padmanabhan, (1989) 179 ITR 243.

99 CWT v. P.M. Padmanabhan, (1989) 179 ITR 243.

100 The Kerala Joint Hindu Family (Abolition) Act, 1975, s. 4 proviso.

101 Ibid., s. 5.

102 Ibid., s. 5(2), and s. 6.

End of Document