Can a maternal side of the family be called a joint hindu family?
(Querist) 24 May 2012
This query is : Resolved
actually my nana (mothers father) had self acquired property and he died intestate in 1958.my mother was the only child of my nana with and has had 2 husbands who have been divorced by mutual consent 10 years ago and dont have any right in my mothers property .also my nana had a widow with no legal heirs.i inherited the property through my nani directly by way of will in my favour and my mothers favour.my mother has also written a will in my favour for her part.in the will my nani wrote that she does not wish to include my brother in any of her proerties. so now i only have 2 questions -
Q1)can a maternal side of the family be called a joint hindu family? Q2)i have inherited property by my nani through will so does my brother have any right to this inheritance by the operation of law?
(Expert) 25 May 2012
Dear Abhinav according to section 14 of hindu Succession act 1956, r/w amended act 2005 14. Property of a female Hindu to be her absolute property. (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Explanation.- In this sub- section," property" includes both mov- able and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act. (2) Nothing contained in sub- section (1) shall apply to any pro- perty acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property. your nani and your mother both are the absolute owner of the property and both have right to transfer the property by her own will or wish. no one can stop them. your brother can not claim any right in this property till he can not prove that this will is not valid or legal. Feel free to call
(Expert) 25 May 2012
A Hindu Joint Family or Joint Family is an extended family arrangement prevalent among Hindus of the Indian subcontinent, consisting of many generations living under the same roof. 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 [sapinda] relationship. The joint family status being the result of birth, possession of joint cord that knits the members of the family together is not property but the relationship. The family is headed by a patriarch, usually the oldest male called "[Karta]", who makes decisions on economic and social matters on behalf of the entire family. The patriarch's wife generally exerts control over the kitchen, child rearing and minor religious practices. All money goes to the common pool and all property is held jointly.The main disadvantage in joint famili is about the property and about the money.
(Expert) 25 May 2012
1[6. Devolution of interest in coparcenary property. —(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005*, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,—
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son,
and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:
Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.
(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition.
(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005*, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,—
(a) the daughter is allotted the same share as is allotted to a son;
(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and
(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.
Explanation. —For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
(4) After the commencement of the Hindu Succession (Amendment) Act, 2005*, no court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt:
Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005*, nothing contained in this sub-section shall affect—
(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or
(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.
Explanation. —For the purposes of clause (a), the expression “son”, “grandson” or “great-grandson” shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005*.
(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.
Explanation. —For the purposes of this section “partition” means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.]
Statement of Objects and Reasons [The Hindu Succession (Amendment) Act, 2005]
Section 6 of the Act deals with devolution of interest of a male Hindu in coparcenary property and recognises the rule of devolution by survivorship among the members of the coparcenary. The retention of the Mitakshara coparcenary property without including the females in it means that the females cannot inherit in ancestral property as their male counterparts do. The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution having regard to the need to render social justice to women, the States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made necessary changes in the law giving equal right to daughters in Hindu Mitakshara coparcenary property. The Kerala Legislature has enacted the Kerala Joint Hindu Family System (Abolition) Act, 1975.
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.
Sections 6A to 6C
After section 6 the following sections shall be inserted, namely:—
"6A. Equal rights to daugher in co-parcenary property.— Notwithstanding anything contained in section 6 of this Act—
(a) in a joint Hindu family governed by Mitakshara law, the daughter of a co-parcener shall by birth become a co-parcener in her own right in the same manner as the son and have the same rights in the co-parcenary property as she would have had if she had been a son inclusive of the right to claim by survivorship and shall be subject to the same liabilities and disabilities in respect thereto as the son;
(b) at a partition in such a joint Hindu family the co-parcenary property shall be so divided as to allot to a daughter the same share as is allotable to a son:
Provided that the share which a predeceased son or a predeceased daughter would have got at the partition if he or she had been alive at the time of the partition, shall be allotted to the surviving child of such predeceased son or of such predeceased daughter:
Provided further that the share allotable to the predeceased child of a predeceased son or of a predeceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such predeceased child of the predeceased son or of such predeceased daughter, as the case may be;
(c) any property to which a female Hindu becomes entitled by virtue of the provisions of clause (a) shall be held by her with the incidents of co-parcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by will or other testamentary disposition;
(d) nothing in clause (b) shall apply to a daughter married prior to or to a partition which had been effected before the commencement of Hindu Succession (Karnataka Amendment) Act, 1990.
6B. Interest to devolve by survivorship on death.— When a female Hindu dies after the commencement of the Hindu Succession (Karnataka Amendment) Act, 1990, having at the time of her death an interest in a Mitakshara co-parcenary property, her interest in the property shall devolve by survivorship upon the surviving members of the co-parcenary and not in accordance with this Act:
Provided that if the deceased had left any child or child of a pre-deceased child, the interest of the deceased in the Mitakshara co-parcenary property shall devolve by testamentary or intestate succession as the case may be under this Act and not by survivorship.
Explanations.— (1) For the purposes of this section the interest of female Hindu Mitakshara co-parcenary shall be deemed to be the share in the property that would have been allotted to her if a partition of the property had taken place immediately before her death, irrespective of whether she was entitled to claim partition or not.
(2) Nothing contained in the proviso to this section shall be construed as enabling a person who, before the death of the deceased had separated himself or herself from the co-parcenary, or any of his or her heirs to claim on intestacy a share in the interest referred to therein.
6C. Preferential right to acquire property in certain cases.— (1) Where, after the commencement of Hindu Succession (Karnataka Amendment) Act, 1990 an interest in any immovable property of an intestate or in any business carried by him or her, whether solely or in conjunction with others devolves under sections 6A or 6B upon two or more heirs and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred.
(2) The consideration for which any interest in the property of the deceased may be transferred under sub-section (1) shall in the absence of any agreement between the parties, be determined by the court, on application, being made to it in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs of or incidental to the application.
(3) If there are two or more heirs proposing to acquire any interest under this section, that heir who offers the highest consideration for the transfer shall be preferred.
Explanation.— In this section 'court' means the court within the limits of whose jurisdiction the immovable property is situate or the business is carried on, and includes any other court which the State Government may by notification in the Official Gazette specify in this behalf.
[ Vide Karnataka Act 23 of 1994, sec. 2 (w.e.f. 30-7-1994).]
Disposal of undivided interest in property
A wife inherited the interest of her deceased husband in the family property, she continued to be a member of the family and the property including that of her's was held by the family. As a female heir, having inherited property under section 6, she cannot be treated as having ceased to be a member of the family without her volition. Though she can dispose of her undivided interest in the co-parcenery property by a w ill or sale for a valuable consideration, she cannot make a gift of such interest without the prior consent of the other coparceners; Kanna Gounder v. Arjuna Gounder , AIR 2003 Mad 157.
Partition of coparcenary property
(i) The contention of the petitioners that there was automatic partition amongst the heirs of the deceased Karta on his death has been negatived because it is only when the deceased had left his surviving female heirs as provided in proviso to section 6 of the Act, a notional partition is deemed to have taken place in the joint family property for the purpose of ascertaining the share of the deceased in the joint family properties which comes to the share of the female heirs. If there are male heirs there is no automatic partition; Shivgonda Balgonda Patil v. Director of Resettlement, AIR 1992 Bom 72.
(ii) The heirs will get his or her share in the interest which the deceased had in the coparcenary property at the time of his death in addition to the share which he or she received or must be deemed to have received in the notional partition; Gurupad v. Hirabai, AIR 1978 SC 1239.
(iii) The fiction in the explanation of section 6 of the Act should be carried to a narrow extent only with a new point to implement the purpose for which it was introduced. When there were only two coparceners and one of them died, then if any person other then the coparcener is entitled to a share as a result of severance of the share of the deceased coparcener, the share of such other person will become fixed; Shushilabai v. Naraynarao , AIR 1975 Bom 257.
(iv) The deceased coparcener's share gets fixed on the date of his death, subsequent fluctuations in the fortunes of the coparceners do not affect it; Karuppa v. Palaniammal; AIR 1963 Mad 254.
The interpretation of provisions of section 6, its proviso and explanation 1 thereto with legislative intent in regard to the enlargement of share of the female heirs, qualitatively and quantitatively; Gurupad v. Hira Bai , AIR 1978 SC 1239.
It is a principle well established that there is no double coparcenoryship - daughter's children are not coparcenors in her family of birth - they are coparcenors only in their father's family. Hence as regards mother's property if the mother is alive they don't inherit in her life time, only after her death a share would come to them. She is free to dispose it off via a will or gift etc. If she has willed it to you - then your brother can stake no claim.
(Expert) 28 May 2012
There are no complications here, she can validily will her share in property to you.