Mitakshara Hindu Law

1.Explain Mitakshara Joint Hindu family or Discuss Structure of Mitakshara JHF or Features of Mitakshara JHF

During earlier ages , agriculture was the main source of income, which required many hands and legs to work together for the same. This resulted in evolvement of Joint Hindu family.

The Joint Hindu families in India may be mainly c lassified into two heads. 1.Mitakshara Joint Hindu family 2. Dayabhaga Joint Hindu family. Mita Mitaks kshar haraa JHF JHF is gover governe ned d by rule ruless conta contain ined ed in Mita Mitaks ksha hara ra.. Mita Mitaks ksha hara ra is a runni running ng commentary on yajnavalkia Smrithi written by Vijnaneswara. Mitakshara law is applicable in all  parts of India except the states of Assam and Bengal. Dayabhaga is JHF is governed by rules contained in ‘Dayabhaga’. Dayabhaga is a digest of all smrithis viz. Manu smrithi, Narada smrithi, Yajnavalkia smrithi. also know known n as Hind Hindu u Undi Undivi vide ded d Fami Family ly is a pecu peculi liar  ar  Mitaksh Mitakshara ara Joint Joint Hindu Hindu family family also institution recognized and followed by Hindu Society from ancient period. 1. Mitakshara JHF consists of  a male, his wife, his unmarried daughters and his male descendants upto any generation(i.e; Sons, grand Sons, great grand sons and so on.), their wives or widows and unmarried daughters. The following diagram gives a clear picture of Mitakshara JHF

M-(Common male ancestor) + his wife W and his unmarried daughters | Sons of M

+ their wives or widows and unmarried daughters

| Son’s Sons of M + their wives or widows and unmarried daughters |

Son’s Son’s Sons of M+ their wives or widows and unmarried daughters | Son’s Son’s Son’s Sons of M + their wives or widows and unmarried daughters. and so on to any generation.

2. A joint Hindu family consists of persons who live together. Joint family status is the result of  birth, marriage or adoption . 3. Membership of the JHF is a matter of law and cannot be a matter of agreement. 4.The members of the joint Hindu family are  joint in food, worship and estate and may own  joint family property or individual properties. 5.All members are entitled to reside in the family house. 6.They are entitled to be maintained by the family. 7.Beneficial interests of surviving members will be increased by death of a member and decreased by birth of a new member. 8.Joint family may or may not have properties. Possession of movable or immovable property is not an essential condition for existence of a joint family. 9. Even illegitimate son is a member of the father’s joint family. 10.On marriage, daughter ceases to be a member of the father’s family and becomes a member of her husband’s family. Even after her husband’s death, she continues to be a member  of her deceased husband’s family. However, if she returns to her father’s family and claims the  bounty of the family, she is entitled to the right o f maintenance. 11. Coparceners (4 male generations starting from the common ancestor ) only shall have the right over the ancestral property

12.The Hindu undivided Family is recognized as an entity for the purpose of taxation including Income tax. 13. A member of JHF can keep individually acquired property called separate property. 14.The JHF property or the coparcenary property is managed by Kartha of the family. 15. Even after the death of M, the common male ancestor, the joint family continues with other members until partition.

In Kerala, the system of joint family was abolished by the Kerala Joint Hindu Family System(Abolition) Act 1975

2.Discuss Mitakshara Coparcenary 1.The Mitakshara Coparcenary is a narrower body in the Mitakshara Joint family system. 2.The Coparcenary concept is based on the birth right of the sons over the ancestral property held by father. 3.Coparceners only shall have the birth right over the ancestral property.

4. Coparcenary consists of only (1) the father, (2) sons, (3) Son’s Sons and (4) Son’s son’s Sons. Only 4 generations starting from the father.

Father  | Sons | Sons’ Sons | Sons’ Sons’ Sons

5.The mother, wives or widows of sons, and unmarried daughters are not coparceners. 6.Sons belonging to the fifth generation onwards are not coparceners but only members of the joint family. They become coparceners on the death of the father who is holding the ancestral property. 7.A coparcener’s wife and children of are entitled to reside in the family house and can claim maintanence out of coparcenary funds. 8.The Hindu Succession (Amendment) Act, 2005 the daughter of a coparcener is also a coparcener and she has the same rights and liabilities in the coparcenary property as those of the son.

9.The coparceners are having unity of ownership over the coparcenary property. 10.Coparceners cannot predict the quantum of individual share, as new birth decreases the share and death of a coparcener increases the share. 11.The coparceners are having joint possession over the coparcenary property. 12. Though ownership and possession vests with coparcener, it will be in actual possession by the seniormost coparcener called ‘Kartha’ of the family, who manages the property. 13. Each coparcener can claim partition of coparcenary property. 14. A coparcener have the right to restrain unauthorized acts of other coparceners in the coparcenary property like erection of building etc., if it interferes with his enjoyment of the  property. 15. A coparcener can ask for the account of management of the joint property. 16. A coparcener can alienate his undivided share in the coparcenary property by gift, mortgage or Sale as per section 30 of Hindu Succession(Amendment) Act 2005. 17. On the death of a coparcener his interest in the coparcenary property will go to other  surviving coparceners . Legal heirs are not entitled to the property. This is called doctrine of  survivorship. Changes in doctrine of survivorship

a.This doctrine of survivorship was modified by the enactment of ‘The Hindu Women’s Right to Property Act 1937, which provided that if a coparcener dies leaving his widow, she can enjoy the property during her life time and would go back to surviving coparceners after her  death. The surviving coparceners are called reversioners.   b. Hindu Succession(Amendment) Act 2005 abolished the Doctrine enacted Doctrine of intestate succession rule. (Section 6(3))

of survivorship and

18.Coparcenary comes to an end by partition or death of a coparcener.

3.Explain Coparcenary within a coparcenary Under Mitakshara Law it is possible that there may exist separate coparcenaries within a coparcenary. A coparcener is entitled to acquire property in his own name known as his separate property, when he is continuing as a coparcener.

On the death of a coparcener, who has acquired property in his own name, the self acquired   property will inherit to his heirs by succession and not to the surviving coparceners by survivorship.

A(Father)

B generations

C- Son

D (Son’s son)

First

E(Son’s son)

coparcenary(4

including father-

A,B,C,D,E.F)

New coparcenary starting F(Son’s Son’s son) From E (on the Self acquired property Of C as ancestral property) To E,F,G

G(Son’s Son’s son’s son)

The above figure illustrates coparcenary within a cop arcenary.

4.Explain Apratibandha Daya and Sapratibandha Daya ‘Daya’ means heritage or property inherited by a person. Under Mitakshara Law property inherited by a male Hindu is divided into two classes. They are 1. Apratibandha daya or Unobstructed heritage

2. Sapratibandha daya or obstructed heritage.

Apratibandha daya or Unobstructed heritage All properties inherited by a male Hindu from his father, father’s father and father’s father’s father are called unobstructed heritage or apratibandha daya. The holder of apratibandha daya cannot alienate the property. Sapratibandha daya or obstructed heritage All properties inherited by a male Hindu from any relation other than his father are called obstructed heritage or sapratibandha daya. Thus properties inherited by a male Hindu from his mother’s father, brother etc obstructed heritage. His sons do not have any right over this during his life time. The holder of sapratibandha daya can alienate the property. On his death the sapratibandha daya will devolve by succession and not by survivorship.

Explain different ways of acquiring properties in Mitakshara Law. Or Explain Joint Family property and Separate property Under Mitakshara law property is classified into two heads. 1. Joint family property or coparcenary property. 2. Separate property or self acquired property.

1.Joint family property

The joint family property or Coparcenary property is that in which every coparcener is having  joint interest and joint possession. It is the property in which the sons acquire an interest by birth. Doctrine of survivorship is applicable. The joint family property may be classified into the following heads based on the sources from which it comes. a. Ancestral property

The property inherited by a male Hindu from his father, grand father or great grand father is known as ancestral property. This is also known as apratibandha daya or unobstructed property. Over this property, sons, grand sons and great grand sons will get birth right. Income from ancestral property will also constitute ancestral property. b. Joint acquisitions

  properties acquired by joint labour of the coparceners will be presumed to be joint family   property. But if the coparceners intentionally keep the jointly acquired properties as their  deparate property, it will not become a coparcenary property. c. Blended Property- If a coparcener throws his separate property into the common stock after relinquishing the claims over it, it is called Blending and the property is called blended property.

2. Separate property or self acquired property No birth right over it, Doctrine of succession is applicable, Not so, only the owner has the right over it.

 The following are Separate Property:-

1. Obstructed Heritage or Saprathibanda Daya- the property inherited by male from any relative other than father, father’s father , father’s father’s father. IT is said to be obstructed because no birth right can be claimed over it. 2. Gifted property- Gift from friends or relatives. 3. Recovered lost family property- If a coparcener without spending family funds recover lost joint family immovable property, he can take 1/4 th of it or in case of movable property. The whole as its separate property

4. Self acquisitions- By a person’s own labour without the aid of Joint Family Fund. 5. Gains of learning- Gains of learning means the acquisition of property made by means of education or training In Gokul Chand vs Hukum Chand a coparcener sent to England for special training at the expense of his family. The person when joint the civil Service, the Privy Council held that his salary was joint family property. But in 1930 the Hindu Gains of  Learning Act was passed and after this a gain of learning is a person’s separate property though joint family funds are used for his education.

6. Government Grants- Given to a particular individual is his separate property. 7. Income from Separate property 8. Sole coparcenery- If the Joint Family property devolves on sole survivor coparcener it’s become his own separate property.