Management | When property can be termed separate in a joint family situation

Management | When property can be termed separate in a joint family situation
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First Published: Mon, May 12 2008. 12 36 AM IST

Malay Karamkar/Mint
Malay Karamkar/Mint
Updated: Mon, May 12 2008. 12 36 AM IST
Property disputes among families are not uncommon. Other than filling up dusty files in courts across the country, some such disputes fill up much newsprint and are sensational enough to be given substantial airtime on the evening news, including the property disputes of the rich and famous.
Malay Karamkar/Mint
Very often in such disputes, doubts arise as to whether property acquired by individual members of a Hindu joint family would be treated as the property of the individual or as a part of the property of the Hindu joint family. All property, which is not held in coparcenery (that is, joint family ownership), is separate property. Separate property of coparceners as well as separated members of a joint family is recognized by Hindu law.
Property inherited as “obstructed heritage” is the property inherited by a Hindu person from a person other than his father, paternal grandfather or great grandfather. Right to such property does not arise by birth but on the death of the last owner of the property who does not leave a son. It is called “obstructed” because the right of the person to such property is obstructed by the existence of the owner of the property. The right to such property only arises for the first time on the death of the owner.
A gift of a small or reasonable portion of ancestral movable property by a person out of affection to a son, daughter or to the wife is treated as separate property but this gift of property must be made within reasonable limits. A gift of the whole, or almost the whole, of the ancestral moveable property to one son to the exclusion of other sons cannot be treated as a “gift through affection”. Where a Hindu, instead of allowing his self-acquired or separate property to go by descent, makes a gift of it to his son, or bequeaths it to him by will, a question arises whether such property would be the separate property of the son or whether it would be treated as ancestral property for the son and any son that he may have (that is, the testator’s grandson). There was a diversity of opinion in various high court judgements regarding this question.
In the case of Arunachala Mudaliar v. Muruganatha (1954) S.C.R. 243, the Supreme Court studied various texts as well as opinions of the high courts. The court finally took the view that the question was primarily one of the intention of the donor or the testator, which was to be gathered from the terms of the testator’s will. If it is not clear from the actual words of the will, then the court looks into the language of the document as well as the circumstances that surround the giving of the gift in accordance with the established canons of construction. The questions to be answered really are whether the grantor really wanted to make a gift of the property to his son or the apparent gift was only an integral part of a scheme to partition the property being gifted.
Any property that is granted by the government to a member of a joint family is his separate property unless it is made to appear from the grant that such property was meant for the benefit of the whole joint family.
Where the members of a joint family have been wrongfully dispossessed or have been adversely kept out of possession of joint family property for a long period of time and this property is subsequently recovered by an individual member of the family, without any assistance from any of the members of the joint family or joint funds, then, if the father recovers the property, he takes the whole property as his separate or self-acquired property, whether it is movable or immovable property (Jamarathbee v. Prahlad (1978) Mah. L.J.204). However, if it is recovered by any other member of the family, then in case of movable property, the person takes the whole of it as his separate or self-acquired property but in case of immoveable property, he takes one-fourth of the property as his reward for recovering the property and then the remaining three-fourths is divided equally between all the coparceners, including the person recovering the property.
Any property that is held by a sole surviving coparcener is treated as a separate property if there is no widow with a child in the womb or with the power to adopt a child.
The income of a member of a joint family is a separate property if he has obtained it by his own exertion and also without any detriment to the father’s estate; in other words, without any assistance from the joint family property. However, in case any property has been earned at the expense of joint family property, it will automatically be treated as joint family property.
In certain instances, such as gifts given to a priest for certain private services rendered by him, such gifts are his separate property.
In the light of the foregoing analysis, in case a Hindu, who is part of a joint family, holds separate property, such property would exclusively belong to him. No member of the coparcenery, not even his son, acquires any interest in such property by birth.
The person possessing the separate property is free to deal with it any manner he pleases. He may sell it, he may make a gift of it, he may bequeath it by will to any person he likes. Such property is not liable to partition and upon the death of the owner, intestate, it would devolve bysuccession to his heirs and not by survivorship to any of the coparceners in the joint family.
Send your comments to lawfullyyours@livemint.com
This column is contributed by Bharat Bahadur of AZB & Partners, Advocates & Solicitors.
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First Published: Mon, May 12 2008. 12 36 AM IST