When concept of joint family property will be applicable to Muslim family?
Muslim - personal law - no concept of jointness still - Once the property is proved that it was purchased out of joint family fund , whether is part consideration or full consideration, the entire property is joint property and is liable for partition
The position in Muslim Law is that at the moment of death of a Mohammedan, his estate devolves on his heirs and they take the estate as tenants-in-common in specific shares. Muslim Law does not recognize the theory of representation and the interest of each heir is separate and distinct. Therefore, there can be no presumption that acquisition of a property by one or more member(s) of the family is for the benefit of the entire family, unless there is proof to the contrary.
22. The concept of a joint family is foreign to Muslim Law. It is however common in certain areas of Andhra Pradesh, formerly belonging to the Madras State, for descendant Mohammedans to live and trade together and to acquire properties together. There is nothing contrary to law in Mohammedan adult male members of a family carrying on trade for the benefit of all the interested members, including minors and females. The Courts have upheld such legal arrangements and the legal consequences as in law that follow from them. When an adult male member holds assets and carries on business on behalf all the persons interested therein, he stands in a fiduciary relationship to such other persons. Sections 23, 88 and 90 of the Trusts Act are applicable to such cases [D. Raja Ahmed V/s. Pacha BI (1969) 1 AWR 255 (DB)].
23. Thus, it is only if a Mohammedan makes out a case of partnership, agency or fiduciary relationship that he can contend that property purchased in the name of one was for the benefit of all. In such a case the person seeking relief would have to establish that the person who stood in fiduciary capacity made use of the common fund of the parties in making the purchase or that he took advantage of his fiduciary relationship in the transaction. It must however be remembered, as pointed out by a Division Bench of the Madras High Court in Saudagar Muhammad Abdul Rahim Baig Saheb V/s. Saudagar Muhammad Abdul Hakim Baig Saheb AIR 1931 Mad. 553 and affirmed by a Division Bench of the Patna High Court in Rukaiya Begum V/s. Fazalur Rahman MANU/BH/0001/1998 : AIR 1998 Pat. 1, though there is nothing contrary to law in Mohammedan adult members of a family carrying on family trade for the benefit of all the members of the family and the Court would normally uphold such an arrangement and such other legal consequences as in law that would follow from it, notwithstanding the fact that there is no presumption of jointness in Mohammedans, the Court would not import into it the same legal consequences that would follow when such an arrangement is conducted by a Hindu Joint Family.
24. In Shukrulla V/s. Mt. Zuhra Bibi AIR 1932 Allahabad 512, a Division Bench of the Allahabad High Court held:
... Where male members of a family live in union so as to have jointness in mess, business and property, there can be little difficulty in tracing their relations inter se to an implied agreement which clothes each with a representative capacity in reference to his co-sharers. Each must be deemed to be acting not only for himself, but for all in his dealings with regard to joint property and business. Accordingly any acquisitions made by any one member should be considered to have been made by all through the one who actually made it. In such a case, as among partners, each is the manager or agent of the others. The position is not so simple as regards the heirs whose rights are not recognized by any overt act of the surviving male members. The case of female and minor heirs and those not living on the spot, all of whom belong to this category, rests on a somewhat different footing. Their right to share subsequent additions can arise only if the circumstances are such that the male members can be considered to have continued the business and held the joint property on their behalf or in some way made themselves trustees for them in making fresh acquisitions so as to be liable to hold for them part of the resultant benefit.
25. In Aminaddin Munshi V/s. Tajaddin MANU/WB/0175/1931 : AIR 1932 Cal. 538, a Division Bench of the Calcutta High Court observed that though members of a Mohammedan family living in commensality do not form a joint family in the sense that the expression is used with regard to Hindus and there is no presumption, as under Hindu Law, that acquisition of the members is made for the benefit of the joint family, the situation would be different when it is shown that the members of the family were possessing the disputed properties jointly. In such a case, it is not a question merely of the messing together of the members of the Mohammedan family as they possess the properties in common and in jointness. Under such circumstances, the burden would lie upon the managing member of the family to establish that the properties acquired by him during the jointness of the family would not belong to all the members of the family. The managing member would stand in a fiduciary relationship to the other members of his family and would have certain obligations to discharge with reference to them. Thus, where properties are acquired by the managing member, the burden of proving that the said property was not the property of the joint family but was self-acquired would rest upon the managing member himself.
26. This principle was followed by a Division Bench of the Patna High Court in Mst. Bibi Bintul Fatma V/s. S.M. Aftab Ahmad MANU/BH/0036/1963 : AIR 1963 Pat. 128 while upholding the right of the other members of such a family to seek partition of the joint movable and immovable properties held by the managing member of the family.
27. In Saudagar Muhammad Abdul Rahim Baig Saheb MANU/TN/0162/1930 : AIR 1931 Mad. 553, the Madras High Court observed that it is not an uncommon thing in the Madras Presidency where members of the Mohammedan community live surrounded by Hindus, that they absorb and adopt Hindu social ideas and tend to look upon their own social customs from a Hindu point of view. It is therefore common for descendants of Mohammedans to live and trade together and the property is held by several members of the family in the shares to which they are entitled under Mohammedan Law. The Court therefore held that where one such member, upon the death of his father, puts himself in a fiduciary relationship with the other members of the family and assumed the management of the properties, he would be accountable to the other members of the family, not as a co-owner but because of the fiduciary relationship he adopted towards them.
28. In S.K. Kabir V/s. Narayandas Lachman Das Limited MANU/OR/0008/1955 : AIR 1955 Ori. 24, a Division Bench of the Orissa High Court observed that when Mohammedans who live and mess together trace their origin to a common ancestor, carry on business jointly and make acquisitions, their rights are to be determined with reference to the contract, either express or implied.
29. In C. Krishnamurthy Setty V/s. Abdul Khadar AIR 1956 Mysore 14, a Division Bench of the Mysore High Court observed that if during the continuance of the family, properties are acquired in the name of the managing member of the family and it is proved that they are possessed by all the members jointly, the presumption is that they are properties of the family and not the separate properties of the member in whose name they stand.
Equivalent Citation: 2012(5)ALT325
IN THE HIGH COURT OF ANDHRA PRADESH AT HYDERABAD
Letter Patent Appeal No. 141 of 2002
Decided On: 01.03.2012
Appellants: Shaik Mohd. Ali Ansari
Vs.
Respondent: Shaik Abdul Samad
Vs.
Respondent: Shaik Abdul Samad
Hon'ble Judges/Coram:
Hon'ble Sri Madan B. Lokur, Chief Justice and Hon'ble Sri Justice Sanjay Kumar
Hon'ble Sri Madan B. Lokur, Chief Justice and Hon'ble Sri Justice Sanjay Kumar
https://www.lawweb.in/2016/03/when-concept-of-joint-family-property.html
