Law regarding vesting and divesting in Mithakshara joint family property

Mithakshara Coparcenary family, there is community of interest and unity of possession between all the members of the family, and upon the death of any one of them the others may well take by survivorship that in which they had during the deceased's lifetime a common interest and a common possession." But it is also true that no individual member of a Hindu coparcenary, while it remains undivided, can predicate of the joint and undivided property that he, that particular member, has a definite share, one-third or one-fourth. His interest in the coparcenary property is a fluctuating interest which is capable of being enlarged by death in the family and liable to be diminished by birth in the family. It is only on partition that the coparcener is entitled to a definite share.

Under Hindu Succession Act 1956, the Hindu women were given absolute right in the property of her husband under Section 14. On death of male Hindu leaving behind only widow his entire estate vested in his widow absolutely. Till then there was no vesting and divesting of any property in any person.

Instances and vesting divesting and continuation of jointness without vesting.

In Hindu succession act 1956 there are provisions and circumstances show in some situations property vest. Once property vests in one, then the principle applicable is if the property once vested it cannot be divested comes into picture. But the same is not applicable to coparcenary property.

1. When a Hindu Coparcener died leaving behind female heirs as shown in Class I, then notional partition should be made as if he is alive between him and other coparceners, i.e. brothers, sons etc and a share is to be allotted to the deceased. That share deceased in the partition is his personal interest and it be divided among his class I heirs Gurupad Khandappa full bench. Succession under section 8 by female heirs and also by sons who succeed to the estate of deceased take it absolutely without incidence of coparcenary property. So the same can be said to be vested in them. But till the actual partition the share cannot be predicted as held in state of Maharashtra Vs Narayanrao case by apex court.

2. If the sole widow was in Possession of the husband' s estate on the date of 1956 brought into force or later on succeeds to the property of her husband on his death, she becomes absolute owner. This property vests in her. If she subsequently adopts a son as per section 12 of Hindu adoptions and maintenance act adoptee son will not divest the property vested in her.

3. If a Hindu adopts a son as per law, the son becomes member of adoptor' s family and displaced from his natural family and becomes coparcener. Here there is no question of divesting but adoptee becomes coparcener by adoption as if his birth taken place.

4. On death of Male owner leaving behind only female heirs the property vest in them, likewise the male owner dies leaving behind his self acquired property which will vest in his class I heirs. But when the ancestral property is inherited or succeeded by the joint family members including the coparceners, there is no vesting at all. But when there is demand for partition then notional partition is to be evolved and allotted the share to the persons entitled as held in Gurupad case. In this case there is no question of vesting or divesting.

5. When succession is under section 8 then the successors will be holding the property tenants in common. But when the property is succeeded by some under section 6 and some under section 8 then whether the family members Possession is tenants in common or joint tenants and or some property is tenants in common and some are joint tenants. It is only joint tenants and they are all joint family member till partition is demanded by any one member of the family and affected. Therefore when the succession is under both section 6 and 8 then we cannot say that there is vesting or divesting.

6. Another circumstance which supports my view is that In ANCESTRAL PROPERTY state, Tamil Nadu, Karnataka, Maharashtra amendment to HS act is brought and unmarried daughters are made coparceners, the courts granted them equal share, then the share of widow came to be reduced. So till actual partition we cannot assume that property is vested when a Hindu male dies leaving behind sons coparceners, now daughters and widow.

7. If the widow files suit for partition in Karnataka before 1994 and decided before 1994 as the amendment making daughters coparceners is passed she could get more share as the daughters were not given coparcenary share. But if she filed suit after 1994 or decreed after 1994, she could get less share as unmarried daughters were given equal share as that of son.

8. Like wise after 2005 married daughters are allotted coparcenary share and mother gets less share. If we can say that legislature brought amendment with retrospective effect so vested right are divested. Then we cannot say as regarding the ancestral property that once vested cannot be divested. It does not apply to ancestral property. Under section 8 of the HS Act property vest in them and they become absolute owner of it. But in a case of joint family property where male Hindu had died, the apex court in State of Maharashtra Vs Narayanrao refused to allot a ceiling to women stating that the widow can on her own volition can get separated but we cannot think they are separated automatically. Held “There was no action taken by either of the two females concerned in the case to become divided from the remaining members of the family. It should, therefore, be held that notwithstanding the death of Sham Rao the remaining members of the family continued to hold the family properties together though the individual interest of the female members thereof in the family properties had become fixed.” So there is no question of vesting or divesting in the coparcenary ancestral property till actual partition is made no body will know what is their actual share.

In this regard the judgements are

1. PRIVY COUNCIL presided by SEN J. Decided on November 12, 1930 ANAND PRAKASH Vs NARAIN DAS-DORI LAL Held

Can we say, in the case of a joint Hindu family governed by the law of Mitakshara that the son's share was vested in the father?

We cannot say so, for the simple reason that while the family is joint, no member of the family is in a position to say what property is vested in him. The entire property belonging to the family is vested in each and every one of the several members constituting the family. In Mayne's Hindu Law, Edn. 9, at p. 344, the following occurs as a description of an undivided Hindu family: There is no such thing as succession, properly so called in an undivided Hindu family. The whole body of such a family consisting of males and females, constitutes a sort of corporation, some members of which are coparceners that is, persons who on partition, would be entitled to demand a share, while others are only limited to maintenance.

2. SUPREME COURT OF INDIA Coram: - M. C. MAHAJAN, S. MURTAZA FAZL ALI, VIVIAN BOSE JJ. Decided on November 29, 1951 TIKAIT HARGOBIND PRASAD SINGH Vs PHALDANI KUMARI Held

The essence of a coparcenary under the Mitakshara law is unity of ownership. As observed in Katama Natchir v. The Raja of Sivaganga(1), there has to be community of interest and unity of possession between all the, members of the family, and upon the death of any one of them the others may well take by survivorship that in which they had during the deceased's lifetime a common interest and a common possession.

3. SUPREME COURT OF INDIA by K. MUKHERJEA, GHULAM HASAN, T. L. VENKATARAMA AYYAR JJ. Decided on March 23, 1954 SRINIVAS KRISHNARAO KANGO Vs NARAYAN DEVJI KANGO Held

The vesting and divesting does not apply to coparcenary property. If the male person adopts the adopted son becomes member of the family and he becomes coparcener by adoption. But the adopted son cannot divest the vested property from collaterals.

Referred to the law is thus stated in Mulla's Hindu Law, 11th Edition, at pages 20 and 21:

"On the death of a Hindu, the person who is then his nearest heir becomes entitled at once to the property left by him. The right of succession vests in him immediately on the death of the owner of the property. It cannot under any circumstances remain in abeyance in expectation of the birth of a preferential heir where such heir was not conceived at the time of the owner's death."

"Where the estate of a Hindu has Vested in a person who is his nearest heir at the time of his death, it cannot be divested except either by the birth of a preferable heir such as a son or a daughter, who was conceived at the time of his death, or by adoption in certain cases of a son to the deceased."

4. SUPREME COURT OF INDIA by J. C. SHAH, K. N. WANCHOO, R. S. BACHAWAT JJ. Decided on August 04, 1966 SATRUGHAN ISSER Vs SABUJPARI

The essence of coparcenary property is unity of ownership which is vested in the whole body of coparceners. While it remains joint, no individual member can predicate of the undivided property that he has a definite share therein. The interest of each coparcener is fluctuating, capable of being enlarged by deaths, and liable to be diminished by the birth of sons to coparceners: it is only on partition that the coparcener can claim that he has become entitled to a definite share.

5. In State Bank of India v. Ghamandi Ram, (1969) 3 SCR 681 at p. 686: (AIR 1969 SC 1330 at p. 1333) apex court held

"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.xxxx 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."

6. SUPREME COURT OF INDIA by N. L. UNTWALIA, P. N. BHAGWATI, S. MURTAZA FAZL ALI JJ. Decided on May 03, 1977 CONTROLLER OF ESTATE DUTY, MADRAS Vs ALLADI KUPPUSWAMY Held

“Thus analysing the ratio of the aforesaid case regarding the incidents of a Hindu coparcenary it would appear that a Hindu coparcenary has six essential characteristics, namely: (1)that the lineal male descendants up to the third generation acquire an independent right of ownership by birth and not as representing their ancestors; (2) that the members of the coparcenary have the right to work out their rights by demanding partition; (3) that until partition, each member has got ownership extending over the entire property conjointly with the rest and so long as no partition takes place, it is difficult for any coparcener to predicate the share which he might receive; (4) that as a result of such co-ownership the possession and enjoyment of the property is common, (5) that there can be no alienation of the property without the concurrence of the other coparceners unless it be for legal necessity; and (6) that the interest of a deceased member lapses on his death and merges in the coparcenary property.

A Hindu coparcenary under the Mitakshara School consists of males alone: it includes only those members who acquire by birth or adoption interest in the coparcenary property. The essence of coparcenary property is unity of ownership which is vested in the whole body of coparceners. While it remains joint, no individual member can predicate of the undivided property that he has a definite share therein. The interest of each coparcener is fluctuating,

capable of being enlarged by deaths, and liable to be diminished by the birth of sons to coparceners: it is only on partition that the coparcener can claim that he has become entitled to a definite share. The two principal incidents of

coparcenary property are: that the interest of coparceners devolves by survivorship and not by inheritance; and that the male issue of a coparcener acquires an interest in the coparcenary property by birth, not representing his father but in his own independent right acquired by birth.

7. VASANT AND ANOTHER Vs DATTU AND OTHERS by V. Khalid, J; O. Chinnappa Reddy, J Decided on: 08-12-1986 held

We are concerned with proviso (c) to Section 12. The introduction of a member into a joint family, by birth or adoption, may have the effect of decreasing the share of the rest of the members of the joint family, but it certainly does not involve any question of divesting any person of any estate vested in him. The joint family continues to hold the estate, but, with more members than before. There is no fresh Vesting or divesting of the estate in anyone.

8. SUPREME COURT OF INDIA by AFTAB ALAM, R. M. LODHA JJ. Decided on December 09, 2010 MAN SINGH Vs RAM KALA

Held Till disruption of joint family status takes place, neither coparcener nor the other heirs entitled to share in the joint family property can claim with

certainty the exact share in that property. In the case of Appovier Alias Seetaramier v. Rama Subba Aiyan and Ors.1, Lord Westbury speaking for the Judicial Committee (Privy Council) observed, 'According to the true notion of an undivided family in Hindoo law, no individual member of that family, whilst it remains undivided, can predicate of the joint and undivided property, that he, that particular member, has a certain definite share.'

9. SUPREME COURT OF INDIA by J. L. KAPUR, M. HIDAYATULLAH, S. K. DAS JJ. Decided on April 21, 1960 COMMISSIONER OF INCOME TAX, BOMBAY Vs NANDILAL GANDALAL held

Passage in the judgment of Lord Westbury in Appovier v. Rama Subba Aiyan. 11 Moo Ind App 75 at p. 89 (PC) which reads : "According to the true notion of an undivided family in Hindu law, no individual member of that family, whilst it remains undivided, can predicate of the joint and undivided property, that he, that particular member, had a certain definite share... The proceeds of undivided property must be brought according to the theory of an undivided family, to the common chest or purse, and then dealt with according to the modes of enjoyment by the members of an undivided family."

7. THE second is equally well-known, and is found stated in the judgment of Turner, L. J. in Katama Natchiar v. Rajah of Shivagunga, 9 Moo Ind App 539 in the following words :

"There is community of interest and unity of possession between all the members of the family, and upon the death of any one of them the others may well take by survivorship that in which they had during the deceased's life-time a common interest and a common possession."

10. SUPREME COURT OF INDIA Coram :- M. M. DUTT, S. NATARAJAN JJ. Decided on May 06, 1987 THAMMA VENKATA SUBBAMMA Vs THAMMA RATTAMMA Held

THE essence of a coparcenary under the Mitakshara School of Hindu Law is community of interest and unity of possession. A member of joint Hindu family has no definite share in the coparcenary property, but he has an undivided interest in the property which is liable to be enlarged by deaths and diminished by birth, in the family. An interest in the coparcenary property accrues to a son from the date of his birth. His interest will be equal to that of his father.

11. SUPREME COURT OF INDIA Coram: - A. N. GROVER, J. C. SHAH, V. RAMASWAMI JJ. Decided on February 26, 1969 N. VENUGOPALA RAVI VARMA RAJAH Vs UNION OF INDIA

The Mitakshara law of joint family is founded upon agnatic relationship: the undivided family is characterised by community of interest and unity of possession among persons descended from a common ancestor in the male line.

12. SUPREME COURT OF INDIA Coram: - J. C. SHAH, K. SUBBA RAO, S. M. SIKRI JJ.

Decided on April 05, 1965 KALOORAM GOVINDRAM Vs COMMISSIONER OF INCOME TAX, MADHYA PRADESH NAGPUR AND BHARDARA

Under the Mitakshara system the essence of a coparcenary is unity of ownership, and so long as the family remains joint no individual member can claim that he has a definite share in the joint property. Until partition takes place, there is community of interest and unity of possession between all the

members; it is only on partition that the interest of each member becomes definite. "Partition... . is really a process in and by which a joint enjoyment is transferred into an enjoyment in severalty. Each one of the sharers had an

antecedent title and therefore no conveyance is involved in the process... .." [G. Radhakristnayya v. G. Sarasamma,

ILR (1951) Mad 607: (AIR 1951 Mad 213)]

13. SUPREME COURT OF INDIA Coram: - M. C. MAHAJAN, S. MURTAZA FAZL ALI, VIVIAN BOSE JJ. Decided on November 29, 1951 TIKAIT HARGOBIND PRASAD SINGH Vs PHALDANI KUMARI

The essence of a coparcenary under the Mitakshara law is unity of ownership. As observed in Katama Natchir v. The Raja of Sivaganga(1), there has to be community of interest and unity of possession between all the, members of the family, and upon the death of any one of them the others may well take by survivorship that in which they had during the deceased's lifetime a common interest and a common possession. The incidents attaching to a Birbhum ghatwali tenure rule out the existence of any notion of community of interest and unity of possession of the members of the family with the holder for the time being. He is entitled to be maintained in exclusive possession of the ghatwali lands and the devolution of the property is to him in the status of a sole heir.]

14. SUPREME COURT OF INDIA Coram: - J. C. SHAH, S. M. SIKRI, V. RAMASWAMI JJ.

Decided on March 21, 1967 COMMISSIONER OF INCOME TAX, PUNE Vs H. H. RAJA OF BHOR Held

“As observed by the Judicial Committee in Katama Natchiar v. Rajah of Shivagunga:

"There is community of interest and unity of possession between all the members of the family, and upon the death of any one of them the others may well take by survivorship that in which they had during the deceased's lifetime a common interest and a common possession." But it is also true that no individual member of a Hindu coparcenary, while it remains undivided, can predicate of the joint and undivided property, that he, that particular member, has a definite share, one-third or one-fourth-(Lord Westbury in Appovier v. Rama Subba Aiyan). His interest in the coparcenary property is a fluctuating interest which is capable of being enlarged by death in the family and liable to be diminished by birth in the family. It is only on partition that the coparcener is entitled to a definite share. But the important thing to notice is that the theory of ownership being acquired by birth has given rise to the doctrine of Samuda" vika swatwa or aggregate ownership in the Mitakshara school

15. SUPREME COURT OF INDIA Coram: - E. S. VENKATARAMIAH, O. CHINNAPPA REDDY, R. B. MISRA JJ. Decided on March 19, 1985 STATE OF MAHARASHTRA Vs NARAYAN RAO SHAM RAO DESHMUKH held

While under the Mitakshara Hindu Law there is community of ownership and unity of possession of joint family property with all the members of the coparcenary,

“Rights of child in womb. - A child who was in the womb at the time of the death of an estate and who is subsequently born alive shall have the same right to inherit to the intestate as if she had been born before the death of the intestate, and the inheritance shall be deemed to vest in such a case with effect from the date of death of the intestate.

Which means that the on death of a coparcener the property vest in members of the joint family.

Word vest and divest also used in Hindu adoptions and maintenance act 1956 in section 12

Section 12

(b) any property which vested in the adopted child before the adoption shall continue to vest in such person subject to the obligations, if any, attaching to the ownership of such property, including the obligation to maintain relatives in the family of his or her birth;

(c) The adopted child shall not divest any person of any estate which vested in him or her before the adoption. 1 Ins. by Act 45 of 1962, s. 4. (196A).

16 SUPREME COURT OF INDIA

Coram: - G. K. MITTER, K. N. WANCHOO, V. BHARGAVA JJ.

Decided on April 19, 1967 SAWAN RAM Vs KALAWANTI

It is held that the property vested in the widow will not be divested by adoption.

It is now settled that if the Hindu widow governed by Mithakshara law succeeds to her husband and thereafter adopts son after 1956 i.e. after vesting her husband' s estate in her, the adopted son cannot divest the property vested in her. Likewise any property vested in others and adoption is by the widow, then also the property vested cannot be divested.

If a Hindu adopts a son the adopted son becomes member of adopted family becomes coparcener.

17. In DHARMA SHAMRAO AGALAWE VS. PANDURANG MIRAGU AGALAWELAWS

SUPREME COURT OF INDIA Coram :- E.S.Venkataramiah , K.N.Singh J. Decided on February 22, 1988 Held

The property, no doubt passes by survivorship, but there is no question of any vesting or divesting in the sense contemplated by S. 12 of the Act. To interpret S. 12 to include cases of devolution by survivorship on the death of a member of the joint family would be to deny any practical effect to the adoption made by the widow of a member of the joint family. We do not think that such a result was in the contemplation of Parliament at all."

Except the case sole surviving widow succeeds and in Possession of her husband' s property in other instances there is no vesting or divesting.

When there is mithakshara coparcenary joint family on the death of Hindu male member there is no vesting or divesting. The women who are provided for succession u/s 6 and 8 of the act cannot predict that what is their share till actual partition taken place. State of Maharashtra Vs Narayanrao the contention of the women that they have succeeded to the estate in definite share so they be allotted land in the land reforms ceiling area. The court rejected the contention

Holding that

A Hindu coparcenary is, however, a narrower body than the joint family. Only males who acquire by birth an interest in the joint or coparcenary property can be members of the coparcenary or coparceners. A male member of a joint family and his sons, grandsons and great grandsons constitute a coparcenary. A coparcener acquires right in the coparcenary property by birth but his right can be definitely ascertained only when a partition takes place. When the family is joint, the extent of the share of a coparcener cannot be definitely predicated since it is always capable of fluctuating. It increases by the death of a coparcener and decreases on the birth of a coparcener. A joint family, however, may consist of female members. It may consist of a male member, his wife, his mother and his unmarried daughters. The property of a joint family does not cease to belong to the family merely because there is only a single male member in the family. A joint family may consist of a single male member and his wife and daughters. It is not necessary that there should be two male members to constitute a joint family. While under the Mitakshara Hindu Law there is community of ownership and unity of possession of joint family property with all the members of the coparcenary, in a coparcenary governed by the Dayabhaga law, there is no unity of ownership of coparcenary property with the members thereof. Every coparcener takes a defined share in the property arid he is the owner of that share. But there is, however, unity of possession. The share does not fluctuate by births and deaths. Thus it is seen that the recognition of the right to a definite share does not militate against the owners of the property being treated as belonging to a family in the Dayabhaga law.

we feel that Gurupad case has to be treated as an authority for the position that when a female member who inherits an interest in the joint family property under S. 6 of the Act files a suit for partition expressing her willingness to go out of the family she would be entitled to get both the interest she has inherited and the share which would have been notionally allotted to her, as stated in Explanation 1 to S. 6 of the Act. But it cannot be an authority for the proposition that she ceases to be a member of the family on the death of a male member of the family whose interest in the family property devolves on her without her volition to separate herself from the family. A legal fiction should no doubt ordinarily be carried to its logical end to carry out the purposes for which it is enacted but it cannot be carried beyond that. It is no doubt true that the right of a female heir to the interest inherited by her in the family property gets fixed on the death of a male member under S. 6 of the Act but she cannot be treated as having ceased to be a member of the family without her volition as otherwise it will lead to strange results which could not have been in the contemplation of Parliament when it enacted that provision and which might also not be in the interest of such female heirs. To illustrate, if what is being asserted is accepted as correct it may result in the wife automatically being separated from her husband when one of her sons dies leaving her behind as his 331 heir.

Such a result does not follow from the language of the statute. In such an event she should have the option to separate herself or to continue in the family as long as she wishes as its member though she has acquired an indefeasible interest in a specific share of the family property which would remain undiminished whatever may be the subsequent changes in the composition of the membership of the family. As already observed the ownership of a definite share in the family property by a person need not be treated as a factor which would militate against his being a member of a family. We have already noticed that in the case of a Dayabhaga family, which recognises unity of possession but not community of interest in the family properties amongst its members, the members thereof do constitute a family.

Conclusion.

The principle of vesting and divesting does not apply to coparcenary property. It applies to self acquired property. It applies to sole widow succeeding to the estate of her husband which vest in her absolutely and if she adopts a son subsequently the son cannot divest the vested right of widow. The daughters who are made coparceners by amendment to 2005 act by the parliament retrospectively comes under exception of birth of coparcener. The birth of daughter coparcener takes place on the date of commencement of amendment of Hindu succession Act 2005 and it relates back to their date of birth.