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Joint Hindu Family Hindu Undivided Family HUF

Hindu joint family is a kind of family system, which is typically seen amongst the Hindus only. The concept of Hindu joint family is nothing new, and it is in existence since long. This kind of family was well recognised by customary laws. According to the Bombay High Court, a joint Hindu family consists of all persons lineally descended from one common ancestor and includes their wives and unmarried daughters. Jointness is the fundamental feature of this kind of family. However, the interpretation of this kind of jointness is not to be conceived in literary sense. One may say that mere staying together can constitute the status of joint-ness. The meaning, however, is far wider. The family is treated as joint not only with reference to the estate but also with regard to food and worship. Following are certain principles for the purpose of determining the jointness of any Hindu family: Until the contrary is proved, every Hindu family is assumed to be joint in terms of food, worship and estate. Mere living separately does not breach this jointness. Though it may be a relevant factor towards proving the state of separated but however it is not a conclusive one. Once, a family is regarded as joint, then in absence of any clear-cut separation, the presumption of jointness remains intact. This indeed is a very strong presumption and it favours the brothers who are continuing with the state of being joint. The burden of proof lies on the person who alleges that there is a severance of the joint status. In case of a partition already taken place, the general presumption would be that the joint status is no more available. However, at that time, if there is someone alleging that some part of the property is still existing in the undivided form then the burden shall be upon the person who alleges the existence of such unpartitioned property. When a joint family continues to hold property jointly then such property shall be treated as joint family property. However, on the basis of mere fact that the family is joint no assumption can be drawn that the nature of holding property is also joint. This is true because of the principle already referred above that it is not an essential requirement for a joint family to hold or possess property jointly

Meaning of Hindu Undivided Family: Hindu Undivided Family ("HUF") which is same as joint Hindu family is a body consisting of persons lineally descendant from a common ancestor, including their wives and unmarried daughters, who are staying together jointly; joint in food, estate and worship. The daughter,

on her marriage, ceases to be a member of her fathers HUF and becomes a member of her husbands HUF. Joint Hindu family with all its incidents is a creature of law and cannot be created by act of parties except to the extent of which a stranger may be affiliated to the family by adoption. But the absence of antecedent history of jointness, between the male member and his ancestors is no impediment to the male member, his wife and unmarried daughter forming a joint Hindu family. The male member's wife becomes his sapinda on her marriage with him. The daughter too on her birth became sapinda and until she leaves the family by marriage the tie of sapindaship will bind her to the family of her birth. Difference between Dayabhaga HUF and Mitakshara HUF The principal difference is that unlike Mitakshara, under Dayabaga law, HUF does not automatically (as operation of law) come into existence but it comes into existence by voluntary decision of the legal heirs. Unlike Mitakshara, in Dayabaga law, the son does not get interest in the family property by his birth. As such, as long as the father is alive, the son does not have interest in the family property. Till father is alive, there is no unity in ownership; there is only unity in possession as far as the ancestral property is concerned. Creation of HUF: HUF is a creature of law. It cannot be "created" by act of parties, except in rare cases of adoption and reunion. Birth of a son in a Hindu joint family automatically makes him a member of the HUF. In view of this, all male members automatically become members of the HUF. In addition to that, if a child is adopted, then he also becomes a member of the HUF. Similarly, in case of reunion of erstwhile HUF family members, such reunited members become members of the reunited HUF. Moreover, upon marriage, wife becomes a member of her husbands joint family. Kerala is the State in which the HUF is not recognized. This is done by Kerala Joint Family System (Abolition) Act, 1975 with effect from 01.12.1976. HUF as a partner in a partnership firm HUF is a joint family consists of all lineally descended from a common ancestor. Hence, HUF is a group of members of the same family. The "father", or the "senior member" of the family called "Karta", ordinarily manages the property belonging to Joint Family. Hence, the status of HUF cannot be termed as person. The partnership is a relationship between persons who have agreed to share the profits of a business carried on by all or any of them acting for all. Hence, to become a partner in a partnership firm, the partner should be a natural person or recognized as person by the law (Company - by virtue of Companies Act 1956). Since, HUF is not a "person", but only group of persons belonging to the same family and carrying on the family business, HUF cannot be a partner in a partnership firm.

Hindu Coparcenary: A Hindu Coparcenary is a much narrower body within Hindu Undivided Family. Generally speaking, it is a body of individuals who acquires interest by birth in the joint family property. They are the son, grandson and great grandson of the holder of the joint property for the time being. The coparcenary, therefore, consists of a common male ancestor and his lineal descendants in the male line within 4 degrees, running from and including such ancestor. No coparcenary can commence without a common male ancestor though, after his death, it may consist of collaterals such as brothers, uncles, nephews etc. The essence of coparcenary is community of interest and unity of possession. Incidents of Coparcenership: Under Hindu law, every coparcenary has certain fundamental features. They are: 1. The lineal male descendants of a person, up to third generation (excluding him), acquires interest on the coparcenary property held by him. 2. Coparcenary is necessarily a creation of law and it can never be created by agreement or otherwise. 3. In any coparcenary system whenever a coparcener is born acquires an interest by virtue of his birth. 4. A coparcenary system is a unique example of unity of possession and community of interest. Till a partition takes place no coparcener can have absolute ownership on the coparcenary property and hence alienation of such property without required permission and purpose is invalid. 5. The interest in any coparcenary property is always fluctuating as the amount of interest varies with the birth and death of coparceners. 6. A coparcenary property involves collective enjoyment only. There is no concept of individual enjoyment unless there is a partition to the effect. 7. Every coparcener has a right to be maintained including a right of marriage expenses being defrayed out of joint family funds. 8. Every coparcener is bound by the alienation made by the Karta for legal necessity or benefit of estate and by the legitimate acts of management of the Karta. 9. Every coparcener has a right to object and challenge alienations made without his consent or made without legal necessity. 10. In a Mitakshara coparcenary any major coparcener can ask for partition any time. Such right for the asking for partition is an inherent right by virtue of his birth in that

very coparcenary property and such right can not be taken away by any contract in contrary. 11. Every coparcener has a right of survivorship (Survivorship now has been abrogated by Amendment Act of 2005). 12. If a property is a coparcenary property then alienation of interest is of any kind with respect to that property is null and void since every coparcener gets a birth right on that property hence without giving their due interests. Difference between a Co-parcener and a Member of HUF: A HUF, as such, can consist of a very large number of members including female members as well as distant blood relatives in the male line. However, out of this, coparceners are only those males who are within 4 degrees in lineal descendent from the common male ancestor. The relevance of concept of coparcenary is that only coparceners can ask for partition. The other male family members; i.e, other than coparceners in a HUF, have no direct claim over HUF property, but can claim only through the coparceners. HUF Property: A property owned by a HUF is HUF property. A HUF can acquire properties from various sources viz., on partition, by way of gift, through will, accretion to the existing properties, blending, by joint labour, etc. However, after the codification of major aspects of Hindu law in 1956, the concept of ancestral property is considerably diluted, as there is now a clear demarcation between individual property and HUF property of a Hindu male. Self acquired property of a Hindu male will pass on to his legal heirs as per the rules of succession and the legal heirs receive the property as individual property. So also the share of the deceased coparcener in HUF, which otherwise devolves by survivorship to other coparcener goes by succession to legal heirs, which they hold as separate property, if such coparcener has left certain class of female relatives or a male relative who claims through such female relative, specified in Class I of the first schedule to Hindu Succession Act, 1956. (Survivorship now has been abrogated by Amendment Act of 2005) Ancestral property:

Property inherited upto 4 generations of male lineage (i.e., father, grandfather, etc.) is called as ancestral property. The right to a share in such a property accrues by birth itself, unlike other forms of inheritance, where inheritance opens only on the death of the owner. The rights in ancestral property are determined per stripes and not per capita. This means that the share of each generation is first determined and the successive generations in turn sub divide what has been inherited by their respective predecessor. Properties inherited from mother, grandmother, uncle and even brother is not ancestral property. Property inherited by will and gift are not ancestral properties. Joint Acquisitions during Joint Status

Self acquired property can become ancestral property only if it is thrown into the pool of ancestral properties and enjoyed in common. Acquisitions from Joint family Fund

Separate Property:
Prior to 1956, A property that a Hindu male inherits from his father, grandfather (fathers father) or great grandfather (fathers fathers father), would be ancestral or coparcenary property in his hands, with respect to his son, grandson (son of son) and great grandson (son of son of a son). This position has been substantially modified after the passing of the Hindu Succession Act, 1956 Property Received after Partition of Joint Hindu Family Where a coparcener (male member) separates from the joint family after effecting a partition, the character of the property with respect to his share, is coparcenary property with respect to his male descendants. But with respect to his father and brothers, from whom he separates, it is his separate property. Where a single male Hindu obtains his share at a partition and separates, he holdsthe property as a sole surviving coparcener. When he gets married, the property in his hands would be called the joint family property, and when he gets a son, his son would acquire a right by birth in this property. Property inherited from the father under the Hindu Succession Act, 1956. The Hindu Succession Act was passed in 1956. The Act specifies in the preamble, that it is intended to amend and codify the law governing intestate succession among Hindus. It both modifies and codifies the Hindu Law. Section 4 also provides that any rule of Hindu law or custom, inconsistent with the provisions of the Act, would cease to have any effect and it is the statutory provisions that would prevail. A cumulative reading of both the preamble and of section 4 would show that wherever the classical law has been modified or abrogated by any provision of the Act, the law as given by the Act will apply. Section 8-13 and Schedule I, lays down the law of inheritance regarding the property of a male Hindu. On interpreting the provisions, the Courts including the Apex Court have affirmed and reaffirmed that the son inheriting the property from his father, grandfather or great grandfather, under the Hindu Succession Act 1956 would take it as his exclusive or absolute property, with no right of his male descendants over it.

The classical law in this respect, therefore, stands abrogated. Inheritance under the Act creates an absolute ownership in favour of the son. Post 1956, therefore the property inherited by a son from his father, under s-8 of the Hindu Succession Act 1956, would be his separate or exclusive property and his male issue will not have a right by birth, in this property. The son does not inherit the property as the Karta of his branch, but does it in his individual capacity as the son of the intestate, and not as the representative of his male issue. He retains the exclusive power of disposal of this property and his male issue is not competent to restrain him from doing it or to ask for a partition of the property. Therefore, whenever the question arises to decide whether a particular property is ancestral property or separate property first the following is to be ascertained: Whether the property was inherited, or obtained under partition of joint Hindu family. If the property was inherited after the death of the ancestor), it is a separate property, even if inherited from father, fathers father or fathers fathers father. (Father, grandfather, or great grandfather). On the other hand, if it the property has come to the share after partitioned i.e. during the lifetime of one's father amongst the members of a joint family, then it is a co-parcenary / ancestral property. After the amendment to the Hindu Law, from 1.1.2005, even girls have been treated as coparcener and have equal right over such ancestral property.

It is suggested to go through the class notes also.

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