Whatever the sceptic may say about the future of the hindu joint family, it has been, and still continues to be, the fundamental aspect of life of hindus. Under the mitaksha the fathers power are qualified by the sons equal right by birth. In the case of ancestral properties, a son has a right to that property equal to. The separate or own property of a male hindu from the mitakshara family. Mitakshara law draws a distinction between ancestral property referred to as joint family property or coparcenary property and separate e. The family members of hindu undivided family mutually agree on how the joint property should be settled or distributed among each other with mutual consent. Pursuant to the aforesaid agreement, the parties to this deed of partition, hereby divide the joint family property in five equal shares for which purpose the same had been split up into five lots, each of such lot being incorporated in a separate schedule attached to this deed whereby the properties mentioned in schedules i, ii, iii, iv. The dayabhaga and the mitakshara are the two schools of lawthat govern the law of succession of the hindu undivided family under indian law.
Hindu undivided family is a very special kind of business organization. A sons right to ownership is activated upon the death of his father. There is a presumption in hindu jurisprudence that every hindu family is joint unless contrary is proved either by way of partition or extinction of all the members. Wassan singh and others 1983 3 scc 376, the bench said it was well settled that the property inherited from the father by his sons becomes joint family property in the hands of the sons. Doc difference between dayabhaga and mitakshara in hindu.
Main types of joint family system in india 1598 words. Its origin can be traced to the ancient partriarchal system where the patriarch or the head of the family was the unquestioned ruler, laying down norms for the members of his family to follow. Hindu s widow get a share in the joint family property. Joint family is a fundamental aspect of hindu law in which the concept of joint family is where their common ancestor and his male lineal descendants along with.
Karta means manager of joint family and joint family properties. Therefore, mitakshara partition is used into two distinct senses. Joint hindu family and hindu coparcenary the mitakshara joint family is a unique contribution of hindu law which has no parallel in any ancient or modern system of law. According to the mitakshara a son, grandson and greatgrandson acquire right by birth in the ancestral property. The property of a joint hindu family may consist of ancestral property, joint acquisitions self acquisitions thrown into the common stock however, even in the absence of any property, the joint hindu family may still be in existence as a joint hindu family damodar krishnaji nirgude v. The ownership of the coparcenary property is in the whole body of coparceners. A hindu joint family consists of the common ancestor and all his male lineal descendants up to any generation along with their wifes or widows and unmarried daughters of the common ancestor and of the lineal male descendants.
A hindu coparcenary under the mitakshara school consists of males alone. Rights of women in hindu joint and coparcenery property after. In a hindu undivided family governed by the mitakshara law, no individual member of that family can predicate that he has a definite share in the property. Joint hindu family business an affectionate business. If the expression of the intention is a mere pretence or sham, there is, in the eye of law, no separation of the joint family status. Hindu joint family under mitakshara law the hindu joint family is a normal condition of the hindu society.
The joint family property went to the group known as coparceners, i. Section 6 3 of the hindu succession act, as substituted by the hindu succession amendment act, 2005 abolishes the principles of survivorship. The term dayabhaga is derived from a similarly named text written by jimutavahana. Dayabhaga is popular prevalent in west bengal and assam no body aquires the right, share in the property by birth as long as the head of the family is living. The hindu succession act, 1956, dealt with three types of inheritance. Short note on hindu joint family under mitakshara and dayabhaga. Saubhag singh, has summarized the law governing the mitakshara joint family property, prior to the amendment of 2005 apex court bench comprising of justices kurian. They collectively constitute a coparcenary of a hindu family. Alienation is of vast practical utility as it gives a way of using the joint family property for the common use of the family and it is a classic example of the unique position of the hindu joint family which is always ready to help its members in times of need and who work together for common benefit. It is an integral part and the most characteristic way of hindu. 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. Hindu family consists of persons lineally descended from a common ancestor and includes their wives and unmarried daughters. According to the mitakshara school of thought, ownership of property vests in the family as such and not in any member of the family.
The kerala legislature has enacted the kerala joint hindu family system abolition act, 1975. Difference between dayabhaga and mitakshara in hindu law. The business of joint hindu family is controlled under the hindu. These family businesses are working on a large scale in india. It consists of members of three or more generations including grandparents, parents and children. Deed of partition between members of a joint hindu family. Distinction between mitakshara and dayabhaga schools 1. Hindu succession property inherited from father by sons. The joint hindu family business is an affectionate business and a distinct form of organization peculiar to india. He is a person with limited power but he possess such vast power with in ambit of joint. The joint family property goes to the group known as.
The term, mitakshara is derived from the name of a commentary written by vijnaneswara, on the yajnavalkya smriti. The dayabhaga school however grants both sexes the right to ownership. What are the characteristic features of mitakshara. Some of the important types of joint family system in india are as follows. Different types of schools under hindu law a detailed. Interest ownership in this coparcenary created does not fluctuate with birth, it is. Thus the children do not acquire any right, share in the family property as lo.
It recognizes two modes of devolution of property, one for the joint family and other for the individual. The undivided interest of a mitakshara coparcener in a joint hindu family. Reopening of partition in a hindu joint family ipleaders. The institution of joint hindu family is very ancient. A hindu joint family is a fundamental aspect of the life of hindusan ancient and unique institution. Mitakshara the interest of a member of the joint family would, on his death, passed to the other members by survivorship. Joint hindu family firm is created by the operation of law. Therefore in mitakshara school, sons had an exclusive right by birth in joint family property. There is no office or institution in any other system of the world can be compared with it. In the entire hindu joint family karta or manager occupies a very important position. In the mitakshara school, the allocation of parental property is based on the rule of possession by birth. The system is an extended family arrangement prevalent throughout the indian subcontinent, particularly in india, consisting of many generations living in the same home, all bound by the common relationship.
Mitakshara school recognizes two modes of devolution of property. It does not have any separate and distinct legal entity from that of its members. The operation of law creates a joint hindu family business. The separate or coparcener property of male hindu from dayabhaga family. Hindu joint family system mitakshara joint family the mitakshara joint family is a unique contribution of hindu jurisprudence which has no parallel in any ancient or modern system of law. They are different from members who are not coparceners as we have seen earlier. According to the true notion of an undivided family governed by mitakshara law. General nature of hindu undivided family under mitakshara school a hindu undivided family huf is a group of persons united by the tie of. Under hindu law, the law of property has a close relationship with the composition of family. It altogether consists of the three generations of male decedents starting with a common male ancestor who holds the property for the benefit of entire joint family. The joint hindu family business is controlled under the hindu law instead of the. The primary purpose of understanding the concept of mitakshara coparcenary. Moreover, a man can leave his property in his will.
It is an integral part and the most characteristic way of hindu life. Partition deed 1 drafting of a partition deed under. The mitakshara coparcenery is a smaller group of descendants within a large hindu joint family. The system of surrogate mothers or the montessori and kindergarten systems of. It is proposed to remove the discrimination as contained in section 6 of the hindu succession act, 1956 by giving equal rights to daughters in the hindu mitakshara coparcenary property as the sons have. Narayanan, a hindu father under mitakshara law can affect a partition among his sons even in the lifetime of karta of the joint family and such partition would be binding on them. Survivorship and intestate succession understanding the. A coparcenary under the mitakshara school is a creation of law and cannot arise by act of parties except in so far that on adoption the adopted son becomes a coparcener with his adoptive father as regards ancestral properties of the latter. A family settlement agreement is primarily a memorandum of understanding between family members or a settlement deed between brothers when the karta expires. A hindu joint family consists of all persons lineally descended from a common ancestor and includes their wives and unmarried daughters but a hindu coparcenary is much narrower body and includes only those persons who acquire by birth an interest in the joint or coparcenary property those being the sons, grandsons and great grand sons of the holder of the joint property for the time being. Coparcenary or the mitakshara joint family comes into existence on fathers death between brothers. Historically, for generations india had a prevailing tradition of the joint hindu family or undivided family. It has been a fundamental aspect of the life of hindus.
The joint hindu family business is a distinct form of organisation peculiar to india. Partition under hindu joint family properties law times. Difference between joint hindu family and coparcener 1 in order to constitute a joint hindu family the existence of any kind of property is not required whereas in coparcenary there exists a ancestral property. Hindu succession act,1956 bare act with pdf download. Therefore in mitakshara school, sons had an exclusive right by birth in joint family.
The article is divided into five phases wherein the first phase there is an interpretation of word partition by. Joint or undivided family is the normal feature of the hindu society. As a matter of fact we find joint family system in some non hindu communities. The mitakshara school, including its sub schools are the most prevalent. Intestate succession and inheritance under hindu law. Under the mitakshara school, the rights of joint ownership is restricted to the male hindu upon his birth. Sometimes, other kith and kin such as uncles, aunts, cousins and great grandsons also live in the joint family. It has evolved from the ancient patriarchal family which can be described as the earliest unit of human society. Although the joint family system seems to be general in india, it is a peculiar characteristic of the hindu social system. A joint hindu family according to the mitakshara law consists of a male member of a family with his sons, grandsons and greatgrandsons according to hindu law. The joint family is large in size in comparison to nuclear family. In such a case he can define and specify his share along with his sons and thus effectuate a separation among them. Characteristic features of mitakshara coparcenary are as follows. Supreme court summarizes law on mitakshara joint family.
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