types of property under mitakshara school of law

INTRODUCTION

The Hindu Succession Act, 1956 (HSA) is an uneasy compromise between the conservatives who wanted to retain the Mitakshara coparcenary and its discrimination against daughters, and the progressives who wanted to abolish the Mitakshara coparcenar y altogether. In essence, the Act retained the Mitakshara coparcenary. But since last two decades, five southern States took steps to enact remedial legislations to correct the discrimination against daughters.

Mitakshara law draws a distinction between ancestral property (referred to as joint family property or coparcenary property) and separate (e.g. property inherited from mother) and self-acquired properties. In the case of ancestral properties, a son has a right to that property equal to that of his fat her by the very fact of his birth. The term son includes paternal grandsons and paternal great-grandsons who are referred to as coparceners. An important category of ancestral property is property inherited from one’s father, paternal grandfather and paternal great-grand father. The other categories are : i) Share obtained at a partition (ii) accretions to joint properties and self-acquisitions thrown into common stock. The point that deserves attention is that under traditional Hindu law, a daughter is not entitled to property rights by birth in such ancestral properties. In the case of separate or self-acquired property, the father is an absolute owner under the Mitakshara law.

By succession we mean the passing of property from one person (A) to another person (B) on the death of the former (A). Succession is of two types, testamentary and intestate. If a person executes a valid will as to whom the property should go on his deat h and his property is passed on accordingly, it is referred to as testamentary succession. If there is no valid will and the property of a deceased person passes to his heirs as provided by law, it is called intestate succession.

Classification of Property under Mitakshara school

  1. Apratibandha Daya– It means unobstructed heritage all property inherited directly by the male ancestor by the reason of falling within three generations.

As noted above, the property to which right accrues not by birth but on the death of last owner is called obstructed heritage. It is called obstructed because the accrual of right to it is obstructed by the existence of the last owner. Thus the property devolving on parents, brothers, nephews, uncles etc. upon the death of last owner, is obstructed heritage. These relatives do not have any vested interest by birth. Their right to it arises only on the death of the last owner. In this way any property inherited by a male Hindu from relations other than father, father’s father and father’s father’s father would be called obstructed heritage.

  1. Spratibandha Daya – It means obstructed heritage going beyond the three generation and the previous ancestors are the obstructed to inherit the property. The property in which a person acquires an interest by birth is called unobstructed heritage. It is called unobstructed because the accrual of the right to it is not obstructed by the existence of the owner. Thus property inherited by a Hindu from his father, father’s father and father’s father’s father is unobstructed heritage as regards his own male issues, that is, his sons, son’s sons and son’s son’s son. This rights arises on account of their birth in the family and the male descendants in whom the property vests, are called coparceners. Thus the ancestral property in the hands of last male owner is unobstructed heritage.

 

  1. Joint family property or coparcenary Property and separate or self acquired Property

 

 

 

Joint Family Property under Mitakshara law

In Mitakshara Joint Family Property son has a right over the property since the birth, even an illegitimate son or a widowed daughter has a right over the property of their father’s Joint Family Property. Another feature is the right to Maintenance and right of survivorship which will be given to the unmarried daughters and other members respectively in the Joint Family .Under Mitakshara only Joint Family property will be acquired by the coparcenary by the concept of succession and survivorship. In case Board of Revenue v. Muthu Kumar it was observed that when a son inherit the father’s separate property, he will acquire it as a separate property even if he has a son under Section 8 of Hindu Succession Act4 .Whereas in Dayabhaga Joint Family Property son have no right over the properties by birth. Even the concept of Survivorship is not given to son and therefore there is no joint family between the son and the father. Under Dayabhaga it includes all the properties both self acquired and joint family property will be devolve by succession

The Joint family property is the most important prospect of the Hindu joint family. The Hindu joint family property is like a big reservoir into which property flows in from various sources and from which all members of the joint family draw out to fulfill their needs thus coparcenary property is that in which every coparcener has a joint interest and a joint possession

Hindu joint family includes

  1. All ancestral property – it is the property inherited from father, father’s father and father’s father’s   It is the same thing as unobstructed heritage. Thus property inherited from any other relation i.e. maternal grandfather / uncle is not ancestral property but it is the separate property of the person who inherited it.
  2. Doctrine of accretion (aid/help) – any property acquired with the aid/ assistance of ancestral property will also be ancestral property.
  3. Doctrine of Detriment – Property acquired at the cost of ancestral property
  4. Doctrine of Blending – separate property of a coparcener which is voluntarily known by him into common stock to such a extent that it cannot be distinguished from joint family Property.

 

Case law — LAL BAHADUR vs KANHAYALAL

When a Karta has an income from this separate Property as well as from the  joint family property and he deposits all the income in the same bank account , without keeping separate accounts then it is a clear case of bending

  1. Other types of company example – Recovered joint family property

When one coparcener  without any help from  the joint family funds and from other coparceners recover any other joint family Property which was lost from the joint family or  separate property—–>if recover is karta but if recoverer is any other coparcener then

Separate property —–> if property is movable

1/4th as SEPARATE PROPERTY and rest as joint family property——>if property is immovable

 

 

Separate or Self acquired Property

A separate or self acquired property is a property by self acquisition which means Property acquired without any harm to the joint family property. So, a member of the Hindu joint family can, under Hindu law can make separate acquisition of the property

 

 

 

 

 

 

Property acquired in following ways

 

  1. Property inherited as obstructed heritage.
  2. A gift or will of separate property by father to his son if the father intends that the son will take it as his separate Property
  3. Gift of a small portion of ancestral movable property made through affection by a father to his son, wife, daughter, daughter-in law, etc.
  4. Property by a coparcener who has no male issue (son) on partition
  5. Property held by a sole surviving coparcener, when there is no widow in existence who has power to .
  6. Government grants – if Property is granted to a coparcener, unless it has been specially given to him as joint family property
  7. Income from the separate Property or Property acquired with such income
  8. Separate earnings or earnings by self exertion without the help of joint family
  9. Gains of learning- it means those gains, which are made on account of some education, or training that a coparcener has recieved out of joint family funds. Section 2(b) ” gains of learning” mean all acquisition of Property made substantially by means of learning
  10. Salary and remuneration if remuneration, salary, profit or commission is earned by the karta or by any other coparcener on account of substantial investments of the joint family funds in business or industry then it will constitute as joint family Property. But if no joint family funds or properties are invested, then the earnings will constitute as separate Property of the earner

 

 

 

 

COPARCENARY UNDER MITAKSHARA SCHOOL OF JOINT FAMILY

Coparcenary idea under Hindu Law was mainly by the male member of the family where just children, grandsons and great-grandsons son who have a right by birth, who has an interest in the coparcenary property. No female of a Mitakshara coparcenary could be a coparcener but she will always be a part of the Joint Family. So under Mitakshara a son, son’s son, son’s son’s son can a coparcenary i.e. father and his three lineal male descendants can be a coparcener. For Example: Suppose in a Joint Family a Coparcenary will be consisting of four members including father and his three male lineal descendants. They will be form four degree .Suppose if a Joint Family consist of eight male lineal descendants. A coparcenary with the limit, then they will not be forming a coparcenary because we have understood from the above example that only a coparcenary can be consisted on four degree, then the sons will not form a coparcenary in the Joint Family. If they have to a coparcener in the family then only four degree members should be taken into the consideration along with a common ancestor. Then if anyone of the coparcener dies, the next person be added to the coparcenary subsequently.

Under the Mitakshara law, on birth, the son acquires a right and interest in the family property. A son, grandson and a great-grandson form a class of coparceners-based on birth in the family No female is a member of the coparcenary in Mitakshara law. Under this system, joint family property devolves by survi.vorship within the coparcenary. This means that with every birth or death of a male in the family, the share of every other surviving male either gets diminished or enlarged

 

 

 

 

Incidents of coparcenership

  1. Coparcener has right only by birth or adoption
  2. Until partition takes place, it is an unpredictable and fluctuating interest which may be enlarged by deaths and diminished by births in the family
  3. Every coparcener has the right to be in joint possession and enjoyment of joint family Property community of interest and unity of possession
  4. Every coparcener has a right to be maintained including a right to marriage expenses being defrayed out of family funds
  5. Every coparcener is bound by the alienation made by the kartha for legal necessities or benefit of the estate
  6. Every coparcener has a right to object and challenge alienation made without his consent, made without legal necessities
  7. Every coparcener has the right to seek partition and survivorship
  8. Coparcenary cannot be created by an agreement, it is the creature of law.
  9. Coparcener between a father and sons born of civil marriage: If Hindu performs a marriage under the special marriage act 1954 , with a non Hindu, his interest in the joint family Property is severed . It does not mean that there cannot be a coparcener between such a Hindu and a son born to him out of that marriage, provided his son is a hindu.
  10. Coparcenary within coparcenary: It is possible that separate coparcenary may exist within a coparcenary.
  11. No female can be a coparcener: no female except daughter can be it’s member, though they are members of the joint family
  • It means no female except the daughter has right by birth in the joint family property
  • Hindu women’s right to Property, act 1937 – widow by succession, on the undivided share of the husband take absolutely not the coparceners in the family
  • The result was the right of the other coparceners were suspended until the widow gives a share to them

Conclusion

According to the Mitakshara School, there is unity of ownership – no person has a definite share as his interest is always fluctuating with the births and deaths in the family. The whole body of coparceners is the owner. There is unity of possession and enjoyment. Further, while the family is joint and some coparceners have children and others have few or none or some are absent, they cannot complain at the time of partition about some coparceners having exhausted the whole income and cannot ask for an account of past income and expenditure.

The mitakshara School follows the law of inheritance. The law regarding the coparcenary in the joint Hindu family has evolved over time. Before independence various legislations were passed regarding coparcenary. The main change that has been brought after the independence was in 2005 when the Hindu Succession (Amendment) Act, 2005 was enacted. This act changed the face of the Hindu Succession Act by giving equal rights to women as that of the men. The women too can now be the coparceners. These amendments can empower women both economically and socially and  have far-reaching benefits for the family and society. Independent access to property can reduce a woman and her family’s risk of poverty, improve her livelihood options, and enhance prospects of child survival, education and health.       Women owning land or a house also face less risk of spousal violence. Any land in women’s names can increase productivity by improving credit and input access for numerous de facto female household heads. It is clear that amendment to the Hindu Succession Act has made the daughter a member of the coparcenary. These are significant advancements towards gender equality.

Making all daughters coparceners likewise has far-reaching implications. It gives women birthrights in joint family property that cannot be willed away. Rights in coparcenary property and the dwelling house also provide social protection to women facing spousal violence or marital breakdown, by giving them a potential shelter. Millions of women – as widows and daughters – and their families

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