“CLASSIFICATION OF JOINT FAMILY PROPERTY”

PROJECT BY:

NAME: SUMUKH RAM KIRAN BETTADAPURA

COURSE: B.B.A. LL. B (Hons.)

ROLL NO: 1858

SEMESTER: 4

SUBMITTED TO:

Mrs. Pooja Srivastava

TEACHER ASSOCIATE

A FINAL DRAFT SUBMITTED IN FULFILMENT OF THE COURSE FAMILY LAW – II

FOR THE DEGREE OF B.B.A.LL.B [HONS.]

March, 2018

CHANAKYA NATIONAL LAW UNIVERSITY, NYAYA NAGAR,

MITHAPUR, PATNA - 800001

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AIMS AND OBJECTIVES
The researcher tends to bring to light, using research and reports to analyse the “Classifica-
tion of Joint Family Property.”

RESEARCH METHODOLOGY
The researcher will be relying on Doctrinal method of research to complete the project.

HYPOTHESIS

The researcher tends to hypothesise:

1. There exists a Classification of Joint Family Property under Hindu Law.

2. This Classification is divided into - 


(1) Joint-family property or coparcenary property; and

(2) Separate property or self-acquired property.

3. This Classification has been define and substantiated in all relevant provisions and case
law.

SOURCES OF DATA
The researcher will be relying on both primary and secondary sources to complete the
project.

1. Primary Sources: Acts

2. Secondary Sources: Books, newspapers, journals, cases and websites.

LIMITATION
• There is a time limitation for the researcher to finish the research.

• The researcher is limited to his own self for the research.

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CHAPTERIZATION

1. Introduction

2. What is Property, Joint family property, etc? (Definitions)

3. The Classifications of Joint Family Property

o Analysis of these Classifications

o Relevant Case Law and Precedent

4. Relevant Doctrines

5. Conclusions and Suggestions

6. Bibliography

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DECLARATION:

I hereby declare that the project entitled “Classification of Joint Family Property” submitted
in partial fulfilment of the requirements for award of the degree of B.BA.,LL.B (HONS.) at
CHANAKYA NATIONAL LAW UNIVERSITY, is an authentic work and has not been sub-
mitted to any other University/Institute for award of any degree/diploma.

SUMUKH RAM KIRAN BETTADAPURA

(1858)

B.BA.,LL.B.

SECOND YEAR.

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ACKNOWLEDGEMENT:

Firstly I would like to express our immense gratitude towards our institution Chanakya Na-
tional Law University, which created a great platform to attain profound technical skills in the
field of B.BA.,L.LB (Hons.) in the subject Family Law - II, thereby fulfilling our most cher-
ished goal.

I sincerely express thanks to my guide and teacher Mrs. Pooja Srivastava who helped me
complete this project to the best of my capabilities and patiently attended to my queries and
doubts.
I express deep gratitude to my family and friends who continue to push me in the daunting
times of project submission and ultimately, whether directly or indirectly, helping me com-
plete this project successfully.

SUMUKH RAM KIRAN BETTADAPURA

(1858)
B.BA.,LL.B.
SECOND YEAR.

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INTRODUCTION

According to Hindu Law, property can be divided into two main classes, namely,-

(a) Joint family property, and

(b) Separate property.

In turn, joint family property can be divided, according to the source from which it comes,
into two classes, namely,-

(i) Ancestral property, and

(ii) Separate property of coparceners thrown into the common coparcenary stock.

It may be noted that the terms “joint family property” and “coparcenary property” mean the
same thing. Further, property which is jointly acquired by the members of the joint family
with the aid of ancestral property is also joint family property. However, property acquired
without the aid of ancestral property may or may not be joint family property, depending on
the facts and circumstances of the case.

Joint family or coparcenary property is that property in which every coparcener has a joint
interest and over which he has joint possession.

Joint family property is to be distinguished from separate or self-acquired property. Even if a
Hindu is a member of a joint family, he may possess separate property. Such property belongs
exclusively to him, and no other member of the coparcenary, not even his son, acquires any
interest in such property by birth. The owner of such property may sell it, or gift it, or be-
queath it to anyone he likes. If he dies intestate, such property will pass by succession to his
heirs and not by survivorship to the surviving coparceners. Broadly speaking, therefore, all
property other than joint family or coparcenary property is separate property.

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DEFINITIONS

What is Property

In general sense, property is any physical or virtual entity that is owned by an individual or
jointly by a group of individuals. An owner of the property has the right. Human life is not
possible without property. It has economic, socio-political, sometimes religious and legal im-
plications. It is the legal domain, which institutes the idea of ownership. The basic postulate
of the idea is the exclusive control of an individual over some ‘thing’. Here, the most impor-
tant aspect of the concept of ownership and property is the word ‘thing’, on which a person
has control for use. To consume, sell, rent, mortgage, transfer and exchange his property.
Property is any physical or intangible entity that is owned by a person or jointly by a group of
people. Depending on the nature of the property, an owner of property has the right to con-
sume, sell, rent, mortgage, transfer, exchange or destroy their property, and/or to exclude oth-
ers from doing these things.

There are different definitions are given in different act as per their uses and needs. But in the
most important act which exclusively talks about the property and rights related to property
transfer of property act 1882 has no definite definition of the term property. But it is defined
in some other act as per their use and need. Those definitions are as follows:

Section 2(c) of the Benami Transactions (Prohibition) Act, 1988 defines property as:
“Property” means property of any kind, whether movable or immovable, tangible or intangi-
ble, and includes any right or interest in such property.

Section 2 (11) of the Sale of Good Act, 1930 defines property as:
“Property” means the general property in goods, and not merely a special property.

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What is Joint Family?

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 unques-
tioned ruler, laying down norms for the members of his family to follow, obeyed by everyone
in hid family, and having an unparalleled 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 would be sacrificed. Under Hindu Law therefore the joint family sys-
tem 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 hav-
ing 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 system, though considerably diluted,
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.1

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 hus-
band and returns to her father’s house permanently, she again becomes a member of her fa-
ther’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 purposes but is treated as in existence for certain
purposes4 under Hindu Law.

1 Dr. Poonam Pradhan Saxena, Family Law Lectures: Family Law II, pg. 53 (3rd ed., 2018).
2 Surjit Lal v. Commissioner of Income Tax, (1978) 101 ITR 776.
3 Gur Narain Das v. Gur Tahal Das, AIR 1952 SC 225.
4 Srinivasan v. Commissioner of Income Tax, AIR 1962 Mad 146.

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Who is a Coparcenary?

Coparcenary is a narrower institution5 within a joint family comprising only male members.6
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 the segregation between the legal purpose
and the religious purpose, the concept of coparcenary, which initially had the dominant objec-
tive 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 senior most among the coparceners is
called the last holder of the property and from him a continuous chain of three generations of
male members of 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 the coparcenary.7 A person
removed by more than four degrees is not a coparcenar.8 An illegitimate son of lineal male
descendant is a member of the joint family but is not a coparcenar.9

5 Bhupatri Hirachand v. Commissioner of Income Tax, (1977) 109 ITR 97 (Cal.)

6 CED v. Harish Chandra, (1987) 167 ITR 230 (All).
7 Commissioner of Income Tax v. Govinda Ram Sugar Mills, AIR 1966 SC 240.
8 Deshnath Rao v. Ramchander Rao, AIR 1951 Bom 143.
9 Gur Narain Das v. Gur Tahal Das, AIR 1952 SC 225.

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THE CLASSIFICATIONS OF JOINT FAMILY PROPERTY

A. Joint-family property or Coparcenary property:

Joint-family property or coparcenary property signifies the property in which all the co-
parceners have community of interest and unity of possession. Such property consists of:

(a) Ancestral property;

(b) Property jointly acquired by the members of the joint family;

(c) Separate property of a member “thrown into the common stock”;

(d) Property acquired by all or any of the coparcener with the aid of joint family funds.

In Bhagwant P. Sulakhe v. Digamber Gopal Sulakhe 10, the Supreme Court observed that the
character of any joint family property does not change with the severance of the status of the
joint family and joint family property continues to retain its joint family character so long as
the joint family property is in existence and is not partitioned amongst the co-sharers. By a
unilateral act it is not open to any member of the joint family to convert any joint family
property into his personal property.

a) Ancestral Property:

Ancestral property is a specie of coparcenary or joint family property. By the term “ancestral
property” is meant that property which descends from father, father’s father and great grand-
father. In this property a person’s descendant’s up to three generations, i.e., sons, son’s son,
son’s son’s son acquire an interest by birth.

The following kind of properties will constitute ancestral property with its incidental charac-
teristics, namely:

10 1986 AIR 79.

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(1) Such property will devolve by survivorship and not by succession.

(2) It is a property in which male issues of a coparcener acquire an interest by birth.

In this case a male Hindu inherits the property from his father, father’s father or father’s fa-
ther’s father. Thus only the property inherited by a Hindu from anyone of the three immediate
paternal ancestors mentioned above is termed as ancestral property and the only persons who
acquire an interest in it by birth are sons, son’s son and son’s son’s son.

The Privy Council dealing with the source of ancestral property held that it is confined to
property inherited from the three immediate paternal ancestors and the property inherited
from a maternal grandfather is the absolute property of the inheritor in which his son does not
acquire any interest by birth.

Any property inherited by a person from his female relatives, cannot be termed as ancestral
property. Where a property is given in gift to the sister by her brother, after the death of the
sister, her son inherits the same; it would be his separate property not an ancestral property.

Where a question arises as to whether a property obtained by a male Hindu by way of a gift
or will from his father, grandfather or great grandfather would be ancestral or self acquired,
the Supreme Court held that it depends upon the intention of the father or grandfather as ex-
pressed in the deed of gift on will or to be gathered from the terms of the document and sur-
rounding circumstances.

If the intention of the grandfather was that the father should take the property exclusively, the
property in the hands of the father would be his separate property. If the intention of the
grandfather was that the father should take the property for the benefit of the branch of the
family it would be an ancestral property in the hands of the father, for his sons would get
equal rights with him in the property.

Whatever property, till the day of partition that shall be treated as joint family property. The
property earned by the brothers after partition shall not be regarded as joint family property.

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In Commissioner of Income-tax v. P. Chettiar,11 the Court held that where it has not been in-
dicated in the deed of gift that the donee will take as a joint family property, that property
shall be absolute property of the donee, in which his sons will not have any right by birth.

In Hindus the ancestral business of joint family has been regarded as a distinct heritable asset.
Where a Hindu dies leaving a business it descends like other heritable property to his heirs. In
the hands of sons, son’s son and great grandsons it will become a joint family business on the
death of male ancestor and the firm which consists of male issues becomes a “joint family
firm”.

The manager of a joint family cannot start a new business so as to bind the share of the other
adult coparceners, unless the business is started or carried on with their express or implied
consent.

The income of joint family business constitutes joint family property.

Similarly any property acquired in exchange of a joint family property would also be held to
be joint family property.

In case ancestral property is absolutely lost to the family, and a member of the family, by his
own exclusive exertions recovers it without any aid from the joint funds, and with the consent
actual or implied, of the others, the recoverer has certain special claims on the property. The
recovery, if not made with the privity of the co-owners, must at least be bona fide, and not in
fraud or by anticipation of the intention of other co-owners.

In Dharam Singh and others v. Sadhu Singh and others 12, the question was whether the prop-
erty was ancestral or separate. In this case properties devolving on father of party due to the
death of issueless brothers and addition to it by the relinquishment of shares by sisters was
held not to be ancestral property vis-a-vis his sons.

11 1982 133 ITR 103 Mad.

12 AIR 1997 P H 198.

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(b) Property jointly acquired by the members of the joint family:

Where property has been acquired by the members of joint Hindu family by their joint labour
whether in business, profession or vocation, with the aid of joint family property, it becomes
joint family or coparcenary property. According to Bombay High Court a property acquired
by the joint labour of the members, even without the aid of joint family funds, is presumed to
be joint family property in absence of any indication of an intention to the contrary.

Where two brothers acquired some property in a joint Hindu family by their joint efforts, in
absence of an intention to the contrary it would be presumed to be joint property and their
male descendants would acquire an interest in that property by birth.

In Bhagwant P. Sulakhe v. Digambar Gopal Sulakhe 13, the Supreme Court held that the char-
acter of any joint family property does not change with the severance of the status of the joint
family and a joint family property continues to retain its joint family character so long as the
joint family property is in existence and is not partitioned among the co-sharers. By a unilat-
eral act it is not open to any member of the joint family to convert any joint family property
into his personal property.

In the above case, the remuneration received by two of the members of a joint family who
constituted a firm which was appointed as managing agent of a company, for acting as man-
aging agent of the company must be held to be the joint family property when the agreement
of the partnership indicated that the two family members became members of the firm which
was appointed the managing agent of the company, representing the joint family and for the
benefit of the joint family.

In Gurnam Singh v. Pritam Singh & others. the court further held that if property is acquired
by the fund of joint labour even if it was purchased from income derived from land which
was taken on batai and cultivated jointly there would be presumption of jointness and proper-
ty would be treated as joint Hindu family coparcenary property.

13 Supra 10.

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(c) Property Thrown Into the Common Stock:

Where any coparcener voluntarily throws his self-acquired property into the joint fund with
the intention of abandoning all separate claims to it, it would be joint property, so as to be
divisible among all the members. Such an intention need not be express, it is sufficient if the
owner blends it as one general account without discriminating between the two, in such a
way that a clear intention to waive his separate rights may be established.

When the head of a joint Mitakshara family kept only one account of ancestral and self ac-
quired property and sued to amalgamate the funds, it was held that the self-acquired property
became joint property.

Blending is not done by the primary act of blending but it is possible only by deliberate and
intentional acts of the owners of the property. Such an act can be done by express words or by
express conduct of the parties. The act of blending is unilateral. When a member of joint fam-
ily mixes his property to a joint family property, he does not do the act of gift nor is it gift.
There is neither any donor nor donee, nor does it attract the provisions of Transfer of Property
Act.

In K. Abebul Reddy v. Venkata Narayan14 the Supreme Court observed that once it is pre-
sumed that the family is joint and it holds joint property it would be a legal presumption that
the property held by an individual member or by all the members is joint family property. If
any member claims his separate right over certain part of joint property the burden of proof
would be on him to prove that it was his separate property.

In Subrammania Reddi v. Venkatasubba Reddi15, the husband of daughter had brought in cer-
tain properties which got blended with joint family properties; she had become widow and
was issueless. The main consideration to make a sort of family arrangement and therefore
property had been given to her.

14 1984 (16) UJ 679 SC.

15 AIR 1999 SC 1116.

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The other family members themselves have treated certain items of properties as separate
properties. The partition effected on that basis, but the family members blending properties of
widow as joint Hindu property. The Supreme Court observed that properties inherited by
widow from his relations on his maternal side, cannot blended with property of joint family
property.

Where joint family does have joint family property, the separate property of coparceners does
not convert into joint family property, although it is quite possible that the coparceners regard
their separate property as joint family property. He can permit the other coparceners to treat
that property as their property also.

Where the view is taken that separate or self-acquired property has been thrown into common
stock and one’s separate rights have been abandoned, these facts have to be established ex-
pressly. A presumption to this effect cannot be drawn on the basis of mutual love and affec-
tion of the coparceners.

In Lakireddi v. Lakireddi, the Supreme Court observed that the law relating to blending of
separate property with joint family property is well settled. Property separate or self-acquired
of a member of a joint Hindu family may be impressed with the character of a joint family
property if it is voluntarily thrown by the owner into the common stock with the intention of
abandoning his separate claim thereto, but to establish such abandonment a clear intention to
waive separate rights must be established.

From the mere facts that the other members of the family were allowed to use the property
jointly with himself, or that the income of the separate property was utilised out of generosity
to support persons whom the holder was not bound to support or from the failure to maintain
accounts, abandonment cannot be inferred, for an act of generosity or kindness will not ordi-
narily be regarded as an admission of legal obligation.

In Pearety Lal v. Nanak Chand16 , the Privy Council had laid down that where a son claims
that a business started by his father is a joint family business because he has been actively

16 (1948) 50 BOMLR 643.

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assisting in its promotion, there the burden lies on him to establish that the business which
was started in absence of any financial assistance from ancestral property, was intended to be
a joint family business and it was earnestly regarded as such. Once it is established to be a
joint family business, its character will not change despite the change in the attitude of the
father later.

Where a member of coparcenary voluntarily gives up his right in any property and mixes it
with joint property, it would be deemed to be joint property. Where he gives away his proper-
ty in the common stock it would become a part and parcel of the joint Hindu property and
would not be treated separately.

All the members of joint Hindu family cannot create joint property by throwing their money
in common stock. The property belonging to the coparceners only can create joint family
property by blending them into common stock. Such a right is not available to female mem-
bers of the joint family as they are not coparceners.

The doctrine is peculiar to Mitakshara school of Hindu law. When a coparcener throws his
separate property into the common stocks, he makes no gift under the Transfer of Property
Act and therefore it does not amount even to transfer.

(d) Property Acquired With The Aid of Joint Family Funds:

Property acquired with the aid and assistance of joint family property is also joint. Thus, ac-
cumulation of income, i.e., rent etc. of joint family property, property purchased out of such
income, the proceeds of sale or mortgage of such property and property purchased out of
such proceeds are also joint family property.

Where in a joint Hindu family some property is purchased in the name of one of its members,
it will be regarded as a joint family property not his own separate property. If he has acquired
any property without the help of joint family property it could be treated as his separate prop-
erty. Where any member of joint family blends his self acquired property into common prop-
erty of the family or joint family property, it all becomes joint property.

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Where the Karta of joint family purchases any property in his name and does not assert that
joint family property was inadequate to purchase that property, there the burden of proof is on
him to establish that the property was purchased by his own separate property. In absence of
such proof, it would be presumed, that the property was purchased out of joint family proper-
ty and that would be regarded as joint family property.

In D. Latchandora v. Chinnabadu, the Court held that where certain property is given to a
member of joint Hindu family in order to meet the expenses of his maintenance and he ac-
quires some other property out of the income from that property, in that case all the properties
thus acquired by him would become his separate property. But in a case from Madras High
Court, it was held that all the property thus acquired by him would be regarded as joint fami-
ly property in the context of his sons.

In Smt. Parbatia Devi v. Mst. Sakuntala Devi 17, the Patna High Court held that under Hindu
law, when a property stands in the name of a member of a joint family, it is incumbent upon
those asserting that it is joint family property to establish it.

When it is proved or admitted that a family possessed sufficient nucleus with the aid of which
the member might have made the acquisition, the law raises a presumption that it is a joint
family property and the onus is shifted to the individual member to establish that the property
was acquired by him without the aid of the said nucleus.

In Satchidananda Samanta v. Ranjana Kumar Basil18, the Court held that a business run by
coparcener on joint property need not always be joint family business. In Dayabhaga co-
parcenary one coparcener started cinema business on joint family property with the consent
of other coparceners.

The other coparceners did not contribute capital in it. The cinema licence was obtained only
in the name of one coparcener. Evidence on record showed that the grant of cinema licence

17 AIR 1985 HP 109.

18 AIR 1992 Cal 222.

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was not opposed by other coparcener. It was held that the cinema business was not family
business merely because it was run on joint property.

B. Separate or Self-acquired property:

Property which is not joint is called separate or self-acquired property. The word ‘separate’
suggests that the family was formerly joint but has now become separate. When a member
separates from joint family, the property which he acquires will be treated as his separate
property vis-a-vis his relations with his brothers, but so far his sons are concerned it would be
regarded as joint family property. The term “self acquisition” signifies that the property has
devolved upon him in such a manner as nobody except himself has any interest in it.

Property acquired by a Hindu in any of the following ways is his self-acquired or separate
property even though he be a member of a joint Hindu family:—

(1) Property acquired by a Hindu by his own exertion would be his separate property as it is
not the result of any joint labour with the other members of the joint family, provided it is ob-
tained without detriment to joint family property. Where a person has acquired any property
by way of adverse possession after remaining in its possession adversely for a period of
twelve years it would be treated as his self-acquired property not a joint property.

Where a member of joint family carries on a business of medical practitioner in Ayurvedic

medicines and thereby earns heavy sum of money and gives loan on mortgage, thus accumu-
lating further income, all the earnings and the property thus acquired by him would be his
separate property.

Recently in Maklian Singh v. Kulwant Singh, Supreme Court observed that if a male member
of the Joint Hindu Family purchased the property by his own incomes like salary income,
such property is his self acquired property. Such property inherit his heir by succession. It
could not be said to be the property of Joint Hindu Family.

(2) Property inherited by a Hindu from any person other than his father, grandfather or great
grandfather would be his separate property. Where a person earns money from the practice of

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a hereditary profession like the hereditary priest, it will not be regarded as his joint family
property but on the other hand his separate property.

In Madan Lal Phul Chand Jain v. State of Maharashtra19, the Court held that a Hindu can own
separate property besides having a share in ancestral property. Where any member of joint
family inherited land left by his uncle that property came to him as a separate property and he
had an absolute and unfettered right to dispose of that property in the manner he liked. Thus
property inherited by a person from collateral such as brother, uncle etc. cannot be said to be
ancestral property and his son cannot claim a share therein as if it were ancestral property. On
the death of a brother issueless, the property inherited by a person would be his separate
property.

(3) Any property obtained by a Hindu as his share of partition of a joint Hindu family, pro-
vided he has no male issue, shall be treated his separate property. Where a Hindu makes some
acquisitions after partition with the help of his share in joint family property, that property
shall be regarded as his separate property.

(4) Any property devolving on a sole surviving coparcener provided there is no widow in ex-
istence who has power to adopt or has a child in her womb, will be regarded as his separate
property.

(5) Property obtained by a Hindu by a gift or will unless made by his father, father’s father or
father’s father’s father for the benefit of the family and not exclusively for himself, would be
his separate property.

(6) Property obtained by gift of ancestral property made by the father through affection, will
be his separate property.

(7) Property obtained by a Hindu by grant from the Government shall be regarded as separate
property.

19 1992 AIR 1254.

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(8) Joint family property lost to the joint family and subsequently recovered by a member
thereof without the assistance of joint funds from a stranger holding adversely to the family
property shall be regarded as his separate property.

(9) Gains of Learning:

Any income earned by a member of joint family substantially by means of his education or
specialisation, expertise or special intelligence would be regarded as his separate property.
Where a member of joint family acquires some knowledge or specialisation after getting the
education at the cost of joint family fund and later on earns a considerable sum, whether that
sum will be treated as his separate property or joint family property, became a controversial
issue.

In order to bring the controversy to an end the Hindu Gains of Learning Act, 1930 was
passed. The Act provided that no gams of learning shall be held not to be the exclusive and
separate property of the acquirer merely by reasons of learning having been imparted to him
by any member of his family or with the aid of the joint funds of the family or with the aid of
the funds of any member.

Section 3 of the Act provides:

“Notwithstanding any custom, rule or interpretation of the Hindu law, no gains of learning
shall be held not to be exclusive and separate property of the member of the joint family who
acquires them merely by reason of (a) his learning having been in whole or in part, imparted
to him by any member living or deceased, of his family or with the aid of joint funds of his
family or with the aid of joint fund of any member thereof, or (b) himself or his family hav-
ing while he was acquiring such learning been maintained or supported, wholly or in part, by
the joint funds of his family or by the funds of any member thereof.

“Learning means education whether elementary, technical, specific, special or general and
training of every kind which is usually intended to enable a person to pursue any trade, indus-
try, profession or a vocation in life”—Section 2(c).

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“Gains of learning means all acquisitions of property made substantially by means of learn-
ing, whether before or after the commencement of the Act and whether ordinary or extra-or-
dinary result of such learning.”—Section 5(d).

Salary and Remunerations:

Where a member of joint family makes acquisition with the aid of any part of joint family
property, it cannot be his separate earning nor can it be said to be his separate property simply
on account of the fact that such acquisition was made by him by applying his own wisdom or
skill.

In Palanippa v. Commissioner of Income-tax20.- The Supreme Court observed that where no

part of the family funds had been spent to enable the Karta to earn remuneration of managing
director and the family funds had been invested to obtain dividends and other advantages of
being shareholders, the salary, commission and sitting fees of Karta as managing director
shall remain his personal property.

In Dhanwatey v. Commissioner of Income Tax 21, the Court held that the salary earned by a
coparcener as partner constituted joint family property. Where the coparceners invested joint
family assets in partnership and it was agreed that the profits earned in partnership were to be
taken as personal salary of each coparcener, the salary which the manager earned on account
of his personal skill and labour was held to be as a part of joint family property.

On the other hand in Commissioner of Income-tax v. D.C. Shah22, the Supreme Court held
that the salary given to a coparcener as partner on account of his special skill and experience
constituted his self acquired property, even though the family has contributed a large parts of
its capital to the firm.

20 (1964) 1 MLJ 61.

21 1968 AIR 682.
22 1969 AIR 927.

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Where the security is given out of joint family property for the appointment of Karta of joint
family on the post of a manager in an industry, the court held that the salary and remuneration
earned by the Karta will still be regarded his separate property of Karta.

In Bhagwantji Sulakhe v. Digambar Gopal Sulakhe 23, the Court observed: Where a co-
parcener has been appointed as a managing director of a company the remuneration earned
by the coparcener will be regarded his separate property irrespective of the fact that a few
shares of the company were purchased out of joint family property to enable him to become
the managing director.

Where the premium of the insurance policy of a coparcener is deposited out of joint family
fund, the benefit earned by him would be his separate property not the joint family property.

In Sidrammappa v. Babajappa24, the Mysore High Court observed that if the father has taken
an insurance policy in the name of the son and paid the premiums thereof out of love and af-
fection, then the benefits of the policy will belong to the son and constitute his separate prop-
erty.

Similar view was taken by the Andhra Pradesh High Court in Narayanlal v. Controller of Es-
tate duty25 . The Supreme Court in Prabhavati v. Sarangdhar observed: “There is no proposi-
tion of law by which the insurance policies must be regarded as the separate property of the
coparceners on whose lives the insurance is effected by the coparcenary.” If the insurance
policy were taken with any detriment to the joint family funds, then anything obtained there-
by would belong to the joint family.

In Chandra Kant Mani Lai Shah v. Income Tax Commissioner26, the Supreme Court laid
down a new proposition by saying that a partnership firm can be constituted between the Kar-
ta and undivided member of Hindu undivided family. It is not necessary that such undivided

23 Supra 10.
24 AIR 1962 Mys 38.
25 AIR 1969 AP 188.
26 1992 AIR 66.

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member should contribute cash assets to become partner in the firm. When an individual in
place of cash asset contributes his skill and labour in consideration of a share in the profits of
the firm he can become a partner in the firm.

In such cases when a coparcener contributes his skill and labour while entering into partner-
ship with the Karta of Hindu undivided family, it cannot be said that he has not made contri-
bution of any separate asset to meet the requirement of a valid partnership. The profit thus
earned by that coparcener would not constitute the property of the joint family but would be
the separate property of the individual coparcener concerned.

In K.S. Subbiah Pillai v. Commissioner of Income Tax27, the remuneration and commission
was received by the Karta of the family. The tribunal had held that the remuneration and
commission received by the Karta of the joint Hindu family where earned by him on account
of his personal qualifications and exertions and not on account of the investment of the fami-
ly funds in the company, therefore it could not be treated as the income of H.U.F. In this case
the Supreme Court also observed that the decision given by tribunal is correct.

27 1984 147 ITR 87 Mad.

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DOCTRINES

Doctrine of Blending:

The ‘doctrine of blending’ was clearly explained in Mallesappa Bandeppa Desai And another
vs Desai Mallappa And Others28. It was observed in this ruling that the rule of blending in
Hindu Law as evolved by judicial decisions can have no application to a property held by a
Hindu female as a limited owner. That rule postulates a coparcener deliberately and inten-
tionally throwing his independently acquired property into the joint family stock so as to
form a part of it.

The doctrine of blending rule postulates a coparcener deliberately and intentionally throwing
his independently acquired property into the joint family stock so as to form a part of it, i.e.,
the joint family property, it is called the doctrine of blending.

Doctrine of Accretion:

As a general rule, savings and profits made or earned out of the sale of or using coparcenary
property, would also form part of the coparcenary property. Where money is invested and the
transaction brings in profit, the profits would be an accretion and their character would be of
coparcenary property. It is irrespective of the fact whether such accretions were made before
or after the birth of the son.29 Interest realised by a member in possession of family funds,
would be in itself, joint family property30 in his hands, even where the interest was earned
prior to a partition, but was received after the disruption in the family was effected.31 For ex-
ample, where the Karta constructs flats on the family land, with the help of joint family
funds, and sells them at huge profits, the profits would belong to the family and not to the
Karta alone, as profits made with the help of joint family property, would also bear the same
character. Similarly, if with the help of joint family funds, a plot of land is purchased, and af-

28 1961 AIR 1268, 1961 SCR (3) 779.

29 Ayyangouda Basangouda v. Gadigeppa Gouda, AIR 1940 Bom 200.
30 Lakshmanaswami v. Sitaramamurthi, (1950) 1 Mad LJ 31.
31 Shanker Lal v. Official Receiver, AIR 1938 Las 328.

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ter extensive landscaping, this spacious land is made suitable to held weddings and is given
on huge rents for the same purpose, the money so earned would belong to the family.
However, where the Karta gives a specific sum of money to a member of the joint family, to
be used by him for his maintenance or personal use, any savings or profits made out of these
funds, would not constitute the joint family property, and would be the separate property of
that member.32 The reason for this is that the profits or savings made out of the joint family
property that are not to its detriment, would not be coparcenary property, but the separate
property of such person.33 Therefore, where some property is allotted to a member of the joint
family, so that the income coming out of it can be used by him for his maintenance, without
any obligation to either bring the surplus to the common chest34 or to account for the same,
any acquisition made by such member from the savings of this income, would be his separate
property.35 Where he invests the savings into a business and earns profits, the character of
such business and the profits would also be that of his separate property.36

32 Bengal Insurance and Real Property Co. v. Velayammal, (1937) ILR Mad 990.
33 Lachmeswar Singh v. Manowar Hossein, (1892) 19 IA 48.
34 Venkata Subraminya Iyyer v. Eswara Iyyer AIR 1966 Mad 266.
35 Supra 32.
36 China v. Venkata, AIR 1954 Mad 282.

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CONCLUSION:


Whenever the Karta of a joint family purchases an item of property by selling an item of joint
family property, the one so purchased needs to be treated as owned by the joint family. If a
member of joint family property acquired in his own name in the presence of ancestral nucle-
us, it shall be presumed to be joint family property. Law relating to blending of separate
property with joint family property is well settled. Property separate or self- acquired of a
member of a joint Hindu family may be impressed with the character of joint family property
if it is voluntarily thrown by the owner into the common stock with the intention of abandon-
ing his separate claim therein but to establish such abandonment a clear intention to waive
separate rights must be established. There are judicial pronouncements that whatever may be
the extent of the contribution of the acquiring member himself out of his self-acquired fund,
if he takes the aid of any portion of joint or ancestral property in acquiring the property, how-
ever small that aid may be, the property so acquired assumes the character of joint family
property and cannot be claimed by him as self-acquisition.

If a member of joint family property acquired in his own name in the presence of ancestral
nucleus, it shall be presumed to be joint family property. Similarly, if the Karta of a joint fam-
ily purchases an item of property by selling an item of joint family property, the one so pur-
chased needs to be treated as owned by the joint family. The rule of blending under the Hindu
law postulates a coparcener deliberately and intentionally throwing his independently ac-
quired property into the joint family stock so as to form a part of it. From the above analogy,
it is clear that there is no presumption that a joint Hindu family, because it is joint, possesses
any joint family property or if there was a nucleus, any acquisition made by any member of
the joint family is joint family property. It is only after the possession of an adequate nucleus
is shown that such a presumption is drawn and the onus shifts on to the person who claims
the property as a self-acquisition to make out his claim. Despite joint family need not neces-
sarily own any property, once ancestral nucleus is proved, all the subsequent acquisitions ir-
respective of the fact as to whether they stand in the name of either ‘karta’ or other member
of joint family, even female members, are presumed to be joint family properties. But it can
be rebutted by the person setting-up the said properties as his self-acquisitions.

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BIBLIOGRAPHY

A. BOOKS
1. Dr. Poonam Pradhan Saxena: Family Law Lectures [Family Law II]

B. WEBSITES

1. indiankanoon.org
2. scribd.com
3. articlesonlaw.wordpress.com/2017/10/18/joint-family-property-presumptions-with-special-
reference-to-doctrine-of-blending/
4. shareyouressays.com/knowledge/what-are-the-different-classes-of-property-under-hindu-
law/117745
5. legalservicesindia.com/article/502/Definition-&-concept-of-property.html
6. shodhganga.inflibnet.ac.in/bitstream/10603/566/11/11_conclusion.pdf

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