DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM, A.P., INDIA

PROJECT TITLE: EVIDENTIARY VALUE OF CASE DIARY/DAILY DIARY

SUBJECT: FAMILY LAW II

NAME OF THE FACULTY: Ms SUDHA KAVURI

Name of the Candidate: AADITYA VASU

Roll No. & Semester: 2013001 & 4TH Semester

ACKNOWLEDGEMENT

Writing a Project is one of the most significant academic challenges I have ever faced. Though

this project has been presented by me but there are many people who remained in veil, who

support and helped me to complete this project.

I am very thankful to my subject teacher Mrs. Sudha Kavuri without the kind of whom and help

the completion of my project was herculean task for me She donated her valuable time from her

busy time to help me to complete the project. I thanks to all of them who help in my completion

of project.

Abstract

A  joint family or undivided family  is an extended family arrangement prevalent throughout

the Indian subcontinent, particularly in India, consisting of many generations living in the

same home. All the male members are blood relatives and all the women are either mothers,

wives, unmarried daughters, or widowed relatives, all bound by the common relationship.

The Joint Hindu families in India may be mainly classified into two heads.

1. Mitakshara Joint Hindu family

2. Dayabhaga Joint Hindu family

Mitakshara JHF is governed by rules contained in Mitakshara. Mitakshara is a running

commentary on Yajnavalkia Smrithi written by Vijnaneswara. Mitakshara law is applicable in

all parts of India except the states of Assam and Bengal. Mitakshara Joint Hindu family also

known as Hindu Undivided Family is a peculiar institution recognized and followed by Hindu

Society from ancient period. Mitakshara JHF consists of a male, his wife, his unmarried

daughters and his male descendants up to any generation (i.e.; Sons, grand Sons, great

grandsons and so on.), their wives or widows and unmarried daughters.

This piece of work will discuss all the details and the evolution of the Mitakshara Joint Hindu

Family property with certain articles and literature reviews by different and eminent persons.

CONTENTS

OBJECTIVES/AIMS OF THE STUDY

There are two main objectives/aims of this project are:

To know the types of Joint families in India.

To know the evolution Mitakshara Hindu Joint Family.

Introduction

A joint family or undivided family is an extended family arrangement prevalent throughout

the Indian subcontinent, particularly in India, consisting of many generations living in the

same home. All the male members are blood relatives and all the women are either mothers,

wives, unmarried daughters, or widowed relatives, all bound by the common relationship.

The Joint Hindu families in India may be mainly classified into two heads.

1. Mitakshara Joint Hindu family

2. Dayabhaga Joint Hindu family

Mitakshara JHF is governed by rules contained in Mitakshara. Mitakshara is a running

commentary on Yajnavalkia Smrithi written by Vijnaneswara. Mitakshara law is applicable in all

parts of India except the states of Assam and Bengal. Mitakshara Joint Hindu family also

known as Hindu Undivided Family is a peculiar institution recognized and followed by Hindu

Society from ancient period. Mitakshara JHF consists of a male, his wife, his unmarried

daughters and his male descendants up to any generation (i.e.; Sons, grand Sons, great grandsons

and so on.), their wives or widows and unmarried daughters.

This piece of work will discuss all the details and the evolution of the Mitakshara Joint Hindu

Family property with certain articles and literature reviews by different and eminent persons.

Main Types of Joint Family System in India

Some of the important types of Joint Family System in India are as follows:

Although the joint family system seems to be general in India, it is a peculiar characteristic of the

Hindu social system. As a matter of fact we find joint family system in some non-Hindu

communities. Moreover, all Hindus do not follow the Brahmin pattern of family and, therefore,

there are different types of joint families. Different types of joint families found in India are

discussed below.

1. On the Basis of Relatives who are Members of Joint Family:

a) Collateral Joint Family:

It comprises two or more married couples between whom there is a sibling bond. In this type,

usually a brother and his wife and another brother and his wife live together with unmarried

children.

b) Supplemented Collateral Joint Family:

It is a collateral joint family along with unmarried, divorced or widowed relatives. The

supplemented relatives are generally the widowed mother of the married brothers or the widower

father, or an unmarried sibling.

c) Lineal Joint Family:

Two couples, between whom there is a lineal link, like between a parent and his married son or

some times between a parent and his married daughter, live together.

d) Supplemented Lineal Joint Family:

It is a lineal joint family together with unmarried, divorced or widowed relatives who do not

belong to either of the lineally led nuclear families: for example, the father’s widower brother or

the son’s wife’s married brother or sister.

e) Lineal Collateral Joint Family:

In this type three or more couples are linked lineally and collaterally. For instance, we can have a

family consisting of parents and their two or more married sons together with the unmarried

children of the couples.

f) Supplemented Lineal-Collateral Joint Family:

In this type are found a lineal collateral joint family plus married, widowed, separated joint

family plus married, widowed, separated relatives who belong to none of the nuclear families

(lineally and collaterally linked), for example, the father’s widowed sister or brother or an

unmarried nephew of the father.

2. On the Basis of Rules of Inheritance:

On the basis of Rules of Inheritance there can be two types of joint families (a) Mitakshara Joint

family, (b) Daya Bhag joint family.

(a) Mitakshara Joint Family:

The Mitakshara tradition of joint family is based on Yagya Valakya Smrjti and its commentary

which were made by Vigyaneswar. Mitakshara rules of inheritance are followed throughout

India except Bengal and Assam. According to this rule of inheritance, we find the following

characteristics:

(i) The ownership of property starts from the time of birth. Along with the father, the sons have

equal rights in the ancestral property during the life time of the father.

(ii) During the life time of the father there cannot be division of property among the male

members, but after the death of the father the sons have right over the property.

(iii) Women do not have equal rights over the family property as the males have.

(iv) The management of the property is the duty of the father.

(v) If there is any debt in the family then the father has the right to dispose of the family property

to settle the debt.

(b) Dux a Bhag Joint Family:

The Daya Bhag tradition is based on the commentaries made “by Jeemutvahana. According to

Daya Bhag tradition, we find the following characteristics:

(i) The ancestral property cannot be divided during the lifetime of the father.

(ii) There is no question of claiming any right over the ancestral property during the life time of

the father:

(iii) The head of the family has the sole authority to manage, purchase or dispose the family

property in whatever manner he likes and only after, his death the question of the division of the

property arises,

(iv) Women also have right over the property.

Hence, we find that according to the Mitakshara law, the male members have a right over the

family property from the time of birth, but in Daya Bhag law there is no such thing as the right

over property from time of birth and only after the death of the father the property can be

divided.

According to Mitakshara law, if a person dies, the remaining persons equally claim the right over

the property. On the other hand, according to Daya Bhag law, if a male person dies without

leaving any sons then the share of the husband goes to the wife. In Mitakshara law only male

members can claim the property, but in Daya Bhag law, widows can claim a share in the

property. According to Mitakshara law, nobody can dispose of the family property, but in Daya

Bhag there is no such restriction. In this manner we find that the Hindu joint family is based on

rules of inheritance and rules of securing or disposing of the property.

3. The Basis of Authority:

There can be two types of families on the basis of authority

(a) Matriarchal Joint Family:

Matriarchal joint family is found among Nayars of Malabar. The characteristic feature of the

Nambudri distinguishes their Illom from the joint family of the other Hindus. The most

distinguishing feature is its non- partibility of family property. All the members who belong to

Illom have interests in the family property. But this property is not divided by the members

because the economic interests cannot be fulfilled if the family property is divided. Another

thing is that the consent of all the members is important.

For the perpetuation of Illom only the eldest son marries. Although other members of the family

are not debarred from marrying, generally they do not marry Nambudri women. They marry

Nayar women who, along with their children stay in their matrilocal families. Only when the

eldest brother fails to have children, the next senior brother marries a girl of his own caste to

perpetuate the family.

The eldest brother is the head of the family. He has absolute control over the property He has no

power to alienate the property either by sale, gift or otherwise any portion of the property

without the consent of all the members of the Illom. Though the younger brothers have no right

to demand a portion, they, nevertheless, have right to maintenance in the family property.

Another outstanding feature of the Illom is that the female members of the family have equal

rights with men in property. As such, sale or any such alienation can be valid only when it is

assented to by all the female members of the family. Accordingly, a wife can set aside any

alienation of property made by her husband.

Hence, the outstanding features of an Illom that distinguish it from the Hindu joint family are: (i)

non-partibility of family property (ii) more rights of female members in the family property.

The matrilineal family of the Nayars of Kerala is known as the ‘Tarwad’. A Nayar Tarwad is

made up a female and her male as well as her male children and the children of those female

children and so on. It does not include the children of sons, as they belong to the Tarwad of their

mothers.

The family property belongs to the Tarwad and the property is non-partible and individual

members are not entitled to enforce partition. The eldest member of the family is entrusted with

the management of the property and he is known as Karnavan. In case, the eldest male is found

to be incapable of managing the property due to either mental or physical incapacity, the next

senior male member steps into his place.

The Karnavan has more or less absolute authority over the family property, but he is not

empowered to make any permanent alienation of it. Any act of permanent alienation of the

property requires either the explicit or implicit consent of all the members of the Tarwad. The

Karnavan may be removed from his position, if he is found to have acted with bad faith or

wrecklessness or is proved to be incompetent to manage the affairs of the family.

When the Tarwad grows big, it may be divided into smaller units called ‘ Tavazhis’ with the

consent of all the members of Tarwad. Each Tavazhi, like a Tarwad consists of woman, her

daughters and sons, the daughters and sons of her daughters and so on. The property of the

Tarwad is equally divided among the Tavazhis. After the division, the members of Tavazhis

cease to have any right over the property of the parent Tarwad. But their kinship ties with the

Tarwad continues.

(b) Patriarchal Joint Family:

The patriarchal joint family is found among the tribes of central India as well as among all

Hindus which is patrilocal and patrilineal. The offspring’s, particularly male members, do not

leave as a general rule their families of origin after they are married. Hence, the patrilocal joint

family consists of several families of origin and several families of procreation.

Among the Hindus we find a joint family system prevailing throughout India. The head of the

family or the Karta of the joint family has a right to make decision for his family because he is

the working head and he decides all family matters.

To conclude, there are many patterns of joint family found in different parts of India. The

different castes and tribes of India show different forms of family organization, but

fundamentally all family constitutions are either patriarchal or matriarchal.

Main characteristics of Joint Family

On the basis of the conceptual framework, we can mention some characteristics of joint family

system in India.

1. Common Residence:

One of the most important features of the joint family system is common residence. Members of

the joint family normally reside together in the same house or at one particular place. Some

scholars like Iravati Karve regard co- residentiality as an essential ingredient of jointness.

2. Common Kitchen:

Living together is not the only ingredient of joint family. A group of persons living at one place

or under one roof may not form a joint family. Therefore, the essential feature of a joint family is

the common kitchen. The members eat food prepared jointly at the common kitchen. The

undivided kitchen has been traditionally associated with the joint family system.

3. Common property:

The members hold common property. As Milley writes, the joint family “is a cooperative

institution similar to a joint stock company in which there is joint property.” The head of the

family manages the family property like a trustee.

The total earnings of the members are pooled into family treasury and family expenses are met

out of that. According to old Hindu law givers, the nature of joint family consisted in the

ownership of ancestral property. Daya Bhag and Mitakshara rules enjoin that during the life time

of the father, the property of the family cannot be divided between the members of the family.

4. Depth of Generations:

The joint family is large in size in comparison to nuclear family. It consists of members of three

or more generations including grandparents, parents and children. Sometimes, other kith and kin

such as uncles, aunts, cousins and great grandsons also live in the joint family.

5. Common Worship:

The Hindu joint family derives its strength from religion. Hence, it is associated with various

religious rituals and practices. It is. a feature of joint family system that there is a common mode

of worship and common Gods and Goddesses. The reason for this might have been the practice

of ancestor worship and the custom of Pinda Dana.

In ancient times, every family had its own deity or ‘Kula Devata’ who was worshipped

throughout the ages. Thus, common worship of Gods and Goddesses has been associated with

joint family system.

6. Co-operation and Sentiment:

Scholars like I.P. Desai and K.M. Kapadia point out that jointness should be looked in functional

terms. A patrilineal joint family may consist of a number of households headed by males related

through the father.

It may be located even at distant places and may not even have property in common. But what is

common is that it identifies itself as members of a particular ‘ family’, cooperates in rituals and

ceremonies, renders financial and other kinds of help, and cherishes common family sentiment

and abides by the norms of joint living.

7. Ritual Bonds:

The ritual bonds of the joint family are considered to be important component of jointness. A

joint family, thus, is bound together by periodic propitiation of the dead ancestors. The members

perform a ‘Shradha’ ceremony in which the senior male member of the joint family propitiates

his dead father’s or mother’s spirit offering it through the ‘Pinda’ on behalf of all the members.

8. Authority of Karta:

The Hindu family is usually patriarchal. In the patriarchal joint family, the eldest male member

exercises authority. The authority of the head of the family is considered to be supreme.

The Hindu family, in theory and practice, enjoins the figure of the head of the family who is

responsible for the management of the house, management of finances, bread winner and wage

earner. The head of the family or the Karta enjoys the highest position in the family.

Majumdar has written, the Karta of the joint or extended family has the right to make decisions

for his family, he is the working head, he is the judge and the jury, he decides family quarrels, he

is the political head as every family has a place and is represented by the head of the family in

the social, ceremonial and in community activities. “The power is traditionally given to the eldest

male of the family and the head allows little individual freedom to the family members.

As opposed to it, in the matriarchal joint family the eldest female member in theory exercises the

supreme authority.

9. Mutual Obligations:

The joint family consists of a number of relations who have a common residence and a common

kitchen. Because of living together and enjoying property in common, the members of the joint

family are also bound together by the ties of mutuality of obligations. It means that since they

live together, they share the sorrows and joys together. On all important occasions like birth,

death and marriage, they commonly share the burden of sentiments and emotions.

10. Familistic Organisation:

Joint family is based on a family which means the subordination of individual interests to the

interests of the family as a whole. This also means that goals or interests of the family must be

the goals or interests of the individuals.

11. Filial Relationship:

In contrast to conjugal ties (i.e. between husband and wife), emphasis is laid on filial relationship

(the father-son relationship) and fraternal relationship (the relationship between brothers) in the

joint family system. In other words, the conjugal relationship is subordinated to filial and

fraternal relationships.

12. Arranged Marriage:

In the joint family, the head considers it as his privilege to arrange the marriages of the members.

The individual’s right to select his / her life partner is not allowed. The younger members rarely

challenge his decisions and arrangements.

13. Self-Sufficiency:

There was a time when the joint family was mostly self- sufficient. It used to meet the economic,

recreational, educational and other needs of members. The rural agricultural joint families were

mostly self-reliant.

14. Segregation of Sexes:

In the traditional joint family, social life of women was largely confined to family and relatives.

The segregation of sexes was accomplished in a variety of ways. There was separation of

perspective sphere of work for men and women.

Men were looking after the major occupational activities and women were looking after the

household works. Basically, the spheres of operation were separated. This separation of the sexes

in the family tends to characterize social life as well. The women were forming their own social

groups.

15. Kin Relationship between the Members:

We can say that a joint family may consist of members related lineally or collaterally or both.

There is more or less a unanimous agreement that a family is essentially defined as “joint” only

if it includes two or more related married couples. Also it has been observed that these couples

may be related (i) lineally (usually in a father -son relationship or occasionally in a father-

daughter relationship) or (ii) collaterally (usually in a brother-brother relationship or /

occasionally in a brother-sister relationship). Both these types refer to the compositional aspect

of the patrilineal joint family. In matrilineal systems, found in

South-west and North-East India, the family is usually composed of a woman, her mother and

her married and unmarried daughters. The mother’s brother is also an important member of the

family; he is the manager of the matrilineal joint family affairs the husbands of the female

members live with them. In Kerala, husbands used to be frequent visitors in their wife’s

household and lived with their mother’s household.

Mitakshara Hindu Joint family,

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 classified into two heads.

1. Mitakshara Joint Hindu family

2. Dayabhaga Joint Hindu family.

Mitakshara JHF is governed by rules contained in Mitakshara. Mitakshara is a running

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.

Mitakshara Joint Hindu family also known as Hindu Undivided Family is a peculiar 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 up to any generation (i.e.; Sons, grand Sons, great grandsons 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 of 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.

Mitakshara Co-parcenery

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

↓

Son

↓

Son’s son

↓

Son’s son’s son.

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

maintenance 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 senior most 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.

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 C- Son First coparcenary (4 generations)

D (Son’s son) E (Son’s son) including father- A, B, C, D, E. F)

New coparcenary starting F (Son’s Son’s son)

From E (on the Self-acquired propertyOf C as ancestral property) G (Son’s Son’s son’s son)To E, F, G

The above figure illustrates coparcenary within a coparcenary.

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.

Ways of acquiring property in Mitakshara Law.

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, grandfather or great grandfather is

known as ancestral property. This is also known as Apratibandha daya or unobstructed property.

Over this property, sons, grand sons and great grandsons 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 separate 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 1/4th 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. Sole Coparcenary- If the Joint Family property devolves on sole survivor coparcener it’s

become his own separate property.