The Features Of A Joint And Undivided Family – Examined!

Joint family under Mitakshara Law:

The joint family system is the cherished institution of the Hindus. According to the Hindus the family and as individual is the unit of society. A joint and undivided family is the normal condition of the Hindu Soci­ety. Therefore, a Hindu family shall be presumed to be joint unless the contrary is proved.

The normal state of every Hindu family is that it is a joint family presumably joint in food, wor­ship and estate. The presumption is also that it continues to be joint. Rukmbai v. Laxminarayan, A.I.R. 1960 SC 335).

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Composition of Joint Family:

A Hindu Joint Family is composed of (i) males and (ii) fe­males:

Males:

1. Those that are lineally connected in the male line;

2. Collaterals;

3. Relatives by adoptions; and

4. Poor dependants.

Females:

1. The wife or the widowed wife of a male member; and

2. Maiden daughters.

Thus a Joint Hindu Family consists of all persons lineally descended from a common acestor and includes their wives and unmarried daughters.

It is not necessary that the family should posses some joint property. The existence of joint estate is not an essential requisite to constitute joint Hindu family. Hindu family which does not own any joint property may nevertheless be joint. A Hindu gets joint family statutes by birth, and the joint family property is only an adjunct to the joint family.

The joint Hindu family must be distinguished from Hindu coparcenary. The latter is a much narrower body than the joint family. The coparcenary includes only those persons who by birth acquire an interest in the joint or coparcenary property. They are the sons, son’s sons and son’s sons of the holder of the joint family for the present. They are the three generations next to the last holder in un-broken male descent.

The essence of a coparcenary under the Mitakshara Law is unity of ownership and unity of possession. The ownership of the coparcenary property, vests in the whole body of coparceners. As long as the family is joint no individual member can predicate of the joint undivided property, that is, he has certain and definite share therein.

The rights of each coparcener consist in a common possession and common enjoyment of the whole coparcenary.

No coparcener can transfer his individual share without the consent of other coparceners. It has been held by Madras and Bombay High Courts that a coparcener may sell or mortgage for value his undivided share without the consent of the other copar­cener.

A coparcener acquires an interest in the property by birth. On the death of a coparcener his interest devolves on the surviving coparceners by the rule of survivorship. The interest of the son on his birth is equal to that of his father.

Rights of coparceners:

The main rights of coparceners are:

1. Right to joint ownership;

2. Right of joint possession, enjoyment and use of joint fam­ily property;

3. Right of survivorship;

4. Right of maintenance;

5. Right to challenge an improper alienation made by Karta or any other member together with the right to restrain improper alienation;

6. Right of alienation of undivided interest under certain Circumstances;

7. Right to partition.

The head of the joint family is called the Karta. He has the control over the income and expenditure of the family and is the custodian of the surplus, if any. The Karta has an implied author­ity to contract debts on the family but he has no authority to alienate or change the family property except for legal necessity or benefit of the family estate.

Every member of a Mitakshara joint family has the following rights:-

1. Right to maintenance and residence;

2. Right to have partition;

3. Right to call for an account an incidental to the right;

4. Right to joint possession and enjoyment.