The Concept
Hon’ble Supreme Court in the case of Hardeo Rai vs. Sakuntala Devi & others reported in (2008) 7 SCC 46 that-
“According to the Mitakshara School of Hindu Law all the property of a Hindu joint family is held in collective ownership by all the coparceners in a quasi-corporate capacity. The textual authority of the Mitakshara lays down in express terms that the joint family property is held in trust for the joint family members then living and thereafter to be born (See Mitakshara, Chapter I. 1-27). The incidents of coparcenership under the Mitakshara law are: first, the lineal male descendants of a person up to the third generation, acquire on birth ownership in the ancestral properties of such person; secondly, that such descendants can at any time work out their rights by asking for partition; thirdly, that till partition each member has got ownership extending over the entire property conjointly with the rest; fourthly, that as a result of such co-ownership the possession and enjoyment of the properties is common; fifthly, that no alienation of the property is possible unless it be for necessity, without the concurrence of the coparceners, and sixthly, that the interest of a deceased member lapses on his death to the survivors. A coparcenary under the Mitakshara School is a creature 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 the ancestral properties of the latter.”
Supreme Court in Balmukand Vs. Kamla Wati and Others:
No doubt Pindi Dass himself was bound by the contract which he has entered into and the Plaintiff would have been entitled to the benefit of Section 15 of the Specific Relief Act which runs thus.
On the basis of the same observations, the decision in Jawala Singh’s case (supra) was confirmed by the Letters Patent Bench In Balmukand’s case (supra) no question that where Mitakshra law prevailed alienation of joint Hindu family property made by the Manager or any coparcenor without any legal necessity and consent by the other coparcenors did not bind the share of the alienor, was raised before the Supreme Court and as such the observations referred to above which were made in the context of Section 15 of the Specific Relief Act would be operative in that limited sphere. By no stretch of reasoning while making the said observations, the Supreme Court can be said to have laid down the law that in the States where Mitakshra law applies, alienation would be binding qua the share of the vendor even though it was made without the consent of other coparcenors and legal necessity nor for the benefit of the estate.
Before the decision of Balmukand Vs. Kamla Wati and Others the law was :
It was admitted between the parties that in Punjab and Haryana, the Hindus are governed by Mitakshra School of Hindu Law. According to paragraph 269 of the Hindu Law by Mulla which is a book of unquestioned authority since more than half a century, where a member of joint Hindu family, governed by Mitakshara law sells or mortgages the joint Hindu family property or any part thereof without the consent of the coparcenor the alienation is liable to be set aside wholly unless it was for legal necessity and it does not pass the share even of the alienating coparcenor. It has been further laid down in ‘this paragraph that even in the Punjab where by custom son cannot claim partition against father, the son is entitled to joint possession with the father when the alienation is set aside. Similar is the statement of law contained in paragraph 260. The above statement of law was duly recognised and enforced by the Privy Council in Lachhman Prasad and Ors. v. Sarnam Singh and Ors. AIR 1917 P.C. 41, Anant Ram and Ors. v. Collector of Etah and Ors. AIR 1917 P.C. 188, and Manna Lal v. Karu Singh and Anr. AIR 1919 P.C. 108. The Full Bench of the Allahabad High Court in Chandradeo Singh and Ors. v. Mata Prasad and Ors. I Indian Cases 479 (F.B.), and Mathura Misra and Another Vs. Rajkumar Misra and Others, , laid down the law to the same effect. In the United Punjab also as expressed in Badam and Ors. v. Madho Ram and Ors. AIR 1922 Lah. 241 , AIR 1925 130 (Lahore) , AIR 1928 111 (Lahore) , AIR 1932 636 (Lahore) , and AIR 1933 343 (Lahore) , the established view has been the same.
The traditional position of Law:-
Section 8 governs succession of the property of a Hindu male and it implies that property must be such which is capable of devolving by succession. Under the traditional Hindu law, the Mitakshra law recognized two modes of devolution of property: (a) joint family property devolved by survivorship and (b) separate property devolved by succession. Under the Mitakshra law, when property passed into the hands of sole surviving coparcener. Then also it devolved by succession. On the other hand, under the Dayabhaga law, all properties devolved by succession. Under the traditional Hindu law, when a son inherits the property from his father, vis-a-vis sons, he takes it as joint family property. Hindu Succession Act has now made a difference. This Act has introduced a new set of heirs and when a Hindu inherits the property from his father under Section 8 , Hindu Succession Act, he takes it as his separate property and not as joint family property vis-a-vis his sons. Inherited property would lose its character of joint family property. The Act brought about a sea change in the matter of inheritance and succession amongst Hindus. Section 4 of the Act contains a non-obstante provision in terms whereof any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of the Act, ceased to have effect with respect to any matter for which provision is made therein save as otherwise expressly provided. Section 6 of the Act, as it stood at the relevant time, provided for devolution of interest in the coparcenary property. Section 8 lays down the general rules of succession that the property of a male dying intestate devolve according to the provisions of the Chapter as specified in clause (1) of the Schedule. In the Schedule appended to the Act, natural sons and daughters are placed in Class-I heirs but a grandson, so long as father is alive, has not been included. In the case law titled as Musini Leela Parsad versus Musinin Bhavani and others 1995(2) Civil Court Cases 94, it has been held “Ancestral property inherited by son on the death of his father shall be treated as his separate property and his son is not entitled to a share in it by birth. In the present suit, admittedly, Santa father of Hansu has died after the commencement of Hindu Succession Act and estate of Santa was inherited by his son Hansu father of the plaintiff under Section 8 being his Class-I legal heir along with Dassu Ram. Thus, Hans Raja inherited this property as separate property and not as Joint Hindu Family Coparcenary Property. In view of the above discussion, I am of the considered opinion that suit property comprised in chaser No. 23//1/5(1-1), 10/2(0-2) and khasra number 281/(0-3) and 210/2(0-19) as fully detailed in the head note of the plaint is not a Joint Hindu Family Coparcenary Property rather it was a separate property in the hands of Daya Ram.”
Place of daughter
In a Hindu family governed by the Mitakshra law, the son and the grandson acquires a right in the property along with their father. The daughter does not acquire any such right. She acquires a right in the share of her father only on the death of her father along with other heirs.
Case of Migration
Pitambar Chandra Shaha Chowdhury vs. Nishi Kanta Saha reported in 24 CWN 215, wherein it was held that:-
“A Hindu family residing in a particular province of India is presumed to be governed by the law of the place where it resides, but where a Hindu family is shown to have migrated from one province to another, the presumption is that it carried with it the
laws and customs as to succession and family relation prevailing in the province from which it came and this presumption, however, is rebuttable by proof that the family has adopted the laws and usages of the place to which it has migrated.”
It is well settled is the law that where a Hindu family migrates from ones state to another, the presumption is that it carries with it, its personal law, that is, the laws and the customs as to succession and family relations prevailing in the state from which it came. However, this presumption may be rebutted by showing that the family has adopted the law and usage of the province to which it has migrated. The principle is illustrated in Mulla’s Hindu Law, 22nd Edition at page 95 in following words:- A Hindu family migrates from north eastern provinces, where Mitakshara Law prevails, to Bengal, where Dayabhaga law prevails. The presumption is that it continues to be governed by Mitakshara Law, and this presumption may be supported by previous instance of succession in the family according to Mitakshara Law after its migration and by evidence relating to ceremonies performed in the family at marriages, births and Shraddhs, showing that the family continued to be governed by Mitakshara Law after its migration. If the migration is proved, and it is also proved that the family followed the customs of the Mitakshara Law, it is not necessary to prove also that the family immigrated to Bengal after the establishment of Dayabhaga system of Law.”
Thus, the issue as to whether a particular person or a family is governed by Mitakshara Law or not can be proved. (1) By proving instances of succession in the family according to Mitakshara Law after its migration and (2) By evidence relating to ceremonies performed in the family at marriages, births and Shraddha. [Subimal Kumar Maity & Ors
-Versus Jhareswar Maity & Anr. Calcutta High Court – March 06, 2019]
Pale of Karta
It is true that a coparcener takes by birth an interest in the ancestral property, but he is
not entitled to separate possession of the coparcenary estate. His rights are not independent of the control of the karta. It would be for the karta to consider the actual pressure on the joint family estate. It would be for him to foresee the danger to be averted and it would be for him to examine as to how best the joint family estate could be beneficially put into use to subserve the interests of the family. A coparcener cannot
interfere in these acts of management. Apart from that, a father-karta in addition to the aforesaid powers of alienation has also the special power to sell or mortgage ancestral property to discharge his antecedent debt which is not tainted with immorality. If there is no such need or benefit, the purchaser takes risk and the right and interest of coparcener will remain unimpaired in the alienated property. No doubt the law confers a
right on the coparcener to challenge the alienation made by karta, but that right is not inclusive of the right to obstruct alienation. Nor the right to obstruct alienation could be considered as incidental to the right to challenge the alienation. These are two distinct rights. One is the right to claim a share in the joint family estate free from unnecessary and unwanted encumbrance. The other is a right to interfere with the act of management of the joint family affairs. The coparcener cannot claim the latter right and indeed, he is not entitled for it. Therefore, he cannot move the court to grant relief by injunction restraining the karta from alienating the coparcenary property. The above principle relating to the rights of karta in management of ancestral joint property vis-a-vis the right and interest of the coparcener has been laid down by the Hon’ble Supreme
Court in Sushil Kumar & Anr vs. Ram Prakash & Ors reported in AIR 1988 SC 576.
