MITAKSHARA HINDU LAW AND ITS RELEVANCE IN MODERN TIMES

SUBJECT- FAMILY LAW II.

Submitted to: Dr. Vijender Kumar. Professor of Law

Submitted by: Shubhank Sanjeev. Roll no. 2010-69 nd 2 year, 3rd semester.

National Academy of Legal Studies and Research (NALSAR), Hyderabad.

Contents List of Cases ...............................................................................................................................ii Table of Abbreviations ............................................................................................................. iv CHAPTER I - 1. Introduction .................................................................................................... 1 1.1 Research Methodology- ................................................................................................... 2 1.2 Research Plan- ................................................................................................................ 2 CHAPTER II - 2. Mitakshara Hindu Joint Family. ................................................................... 3 2.1 Joint Hindu Family .......................................................................................................... 3 2.2 Coparcenary under Mitakshara Hindu law ...................................................................... 5 2.3 Rights of a coparcener .................................................................................................... 5 2.3.1 Community of interest and unity of possession ........................................................ 6 2.3.2 Joint possession and enjoyment ............................................................................... 6 2.3.3 Right to maintenance ................................................................................................ 6 2.3.4 Right of survivorship ............................................................................................... 7 2.3.5 Right to ask for partition ........................................................................................... 7 2.3.6 Right to Partition of Disabled and Absent Coparceners ........................................... 8 2.3.7 Right to renounce his interest in joint family property ............................................. 8 CHAPTER III - Joint Hindu Family in Current times ............................................................... 9 3.1 Coparcenary in current times ........................................................................................... 9 3.2 Effect of Amendment in Hindu Adoptions and Maintenance Act ................................. 10 3.3 Conclusion ..................................................................................................................... 10 CHAPTER IV - 4. Law of Partition......................................................................................... 11 4.1. PROPERTY DIVISIBLE ON PARTITION. ................................................................ 11 4.2 PROPERTIES WHICH ARE NOT CAPABLE OF DIVISION. .................................. 12 4.3. PERSONS ENTITLED TO A SHARE ON PARTITION. .......................................... 12 4.5. Mode of Partition .......................................................................................................... 14 4.5.1. Partition by suit ...................................................................................................... 14 4.5.2 Partition by agreement ............................................................................................ 15 4.5.3 Oral Partition ............................................................................................................... 15 4.5.4Unilateral declaration ............................................................................................... 15 4.5.5 Partition by arbitration ............................................................................................ 15 4.5.6 Partition by conduct: ............................................................................................... 15 4.5.7 Automatic severance of status ................................................................................ 15 4.5.8 Doctrine of Representation ......................................................................................... 16 4.6 Hindu Law Of Partition And The Hindu Succession Act (Amendment) Act 2005....... 16 CHAPTER V - 5. Conclusion .................................................................................................. 18 Bibliography .............................................................................................................................. v i

List of Cases Abu Hamir v. Aher Duda ......................................................................................................... 13 Alluri Venkatapathi v. Dantaluri Venkata Narasimha AIR 1936 PC 264. ................................ 8 Anant v Gopal ............................................................................................................................ 6 Anchuru vs. Gurijala 1961 AIR (AP) 534. ................................................................................ 3 Apaji v. Ramchandra (1812) 16 Bom 29. .................................................................................. 7 Apaji v.Ramchandra(1892) 16 Bom 29. .................................................................................. 11 Babubhai vs. Ujmal 1937 AIR (Bom) 446 ................................................................................ 3 Bhagawati Prasad vs. Rameshwari kuer, 1952 AIR(SC) 72.. .................................................... 4 Chaudhary Raghubans Narain Singh v. State of Uttar Pradesh AIR 1972 SC 2096. ................ 8 Chengama v. Munisama........................................................................................................... 13 Chotey Lal v. Jhandey Lal ....................................................................................................... 17 Commissioner of wealth tax v. Seth Govind Ram (1966) S.C. 1953. ....................................... 9 Damodardas v. Uttamram (1893) ............................................................................................ 12 Digambar v. Dhanraj (1922) 1 Pat 361. ..................................................................................... 7 Digamber Patil v. Derian Patil, AIR 1995 SC 1728 ................................................................ 12 Gahru Ram v. Hardevi AIR 1922 Bom Lah 85. ........................................................................ 7 Gangasahai v. Lekhraj Singh. (1887) 9 All 253. ...................................................................... 5 Guruswamy v. Mallappa AIR 1950 Mad 140. ........................................................................... 8 Heir of Barot Dansang Hirji v. Barot Kanji Hirji .................................................................... 12 Jagat Krishna v. Ajit Kumar, ................................................................................................... 13 Jatru Pradhan v. Ambikaji, AIR 1957 Pat. 570.......................................................................... 5 K. Radhakrishna v. Satyanarayan , AIR 1949 Mad. 173. ........................................................ 15 Kasinath v. Narsingsa, AIR 1961 SC 1077.............................................................................. 15 Katama Natchiar v. Rajah of Shivagungah ................................................................................ 7 Katama Natchiar v. Rajah of Shivagungahi ............................................................................... 6 Katama Natchiar v. The Rajah of Shivganga (1863) 9 MIA 539. ............................................. 6 Krishna Namboodri v. Chena Kesavan AIR 1956 Ker 336. ..................................................... 8 Madan mohan v. Shaha ............................................................................................................ 12 Mahanti v Oluru ....................................................................................................................... 17 Mitta Kuntha v. Nirrunjun, ...................................................................................................... 12 Mitta Kuntha v. Nirrunjun, (1874) 14 Beng. 166. ..................................................................... 3 ii

Moro Vishvanath v. Ganesh Vital ............................................................................................. 8 Nagehsar Baksh Singh v. Ganesha ............................................................................................ 4 Narambhai v. Ranchod 3 Bom LR 598. ..................................................................................... 6 Indranarayana v. Roopnarayana, AIR 1971, SC 1962. ............................................................. 5 Nuniyappa v. Ramaiah. .............................................................................................................. 6 Palani v. Muthuvenkatacharalu, AIR 1925 PC 49. .................................................................. 15 Pedasubhhayya v. Akkamma ................................................................................................... 14 Pedhasubbaya v. Akkamma ....................................................................................................... 7 Pooruandachiv. Gopalasami, AIR1936 PC 281. ...................................................................... 15 Pramath Nath v. Pradumya Kumar AIR 1925 PC. .................................................................... 3 Pratapmull v. Dhanbatti ........................................................................................................... 14 Punna Bibee v. Radha Kissen .................................................................................................. 14 Raja Jogendra v. Nityanand ..................................................................................................... 13 Rajagopala v Venkataraman(1947) 2 MLH 37. ....................................................................... 11 Ram Kumar vs. Commissioner income tax 1953 AIR (All) 150. .............................................. 4 Ramachandra v Seenithlal 1954 Mad 1011. ........................................................................... 11 Ramalinga v Narayana(1922)49 IA 168. ................................................................................. 11 Rewan Prasad v. Mst Radha (1856) 4 MIA 137. ..................................................................... 15 Roshan Singh v. Balwant Singh............................................................................................... 13 Sannamma v. Erappa AIR 1950 Mysore 77. ........................................................................... 10 Shadi lal v Lal Bahadur 1933 AIR (PC) 85. .............................................................................. 4 Shiromani v. Hem Kumar ........................................................................................................ 14 Shivajirao v. Vasantrao (.......................................................................................................... 13 Sri Raghunada v. Brozon Kishor. .............................................................................................. 3 State Bank of Travancore v. Aravinan Kunju. ........................................................................... 3 Sunder lal v. Chittar Mal. ........................................................................................................... 5 Sunil Kumar v. Ram Prakash. .................................................................................................... 6 Vaidyanath v. Aiyasami (1909) 32 Mad 191; .......................................................................... 12 Venakata Reddi v. Lakshamma ............................................................................................... 14 Venneti Sundara Rama Rao v. Smarthy Satyanarayananurty AIR 1950 Mad 74. .................. 10

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Table of Abbreviations AIR All Bom Cal. ed. ed. Govt. Ibid Mad. n. p. PC pp. Punj Rep. S. SC Ss. v. All India Reporter Allahabad Bombay Calcutta Edition Editor Government Ibidem Madras Footnote Page Privy Council Pages Punjab Reprint Section Supreme Court Sections Versus

iv

CHAPTER I 1. Introduction Mitakshara is a commentary on Yajnavalkya Smriti by a sage called Vijananeshwara. Vijananeshwara has mentioned in the introductory part of his commentary that the code of Yajnavalkya was explained to him by his guru Viswarupa1 and he composed the commentary in the latter half of the eleventh century. Though Mitakshara literally means a brief compendium but infact its a treatise of Hindu Law which contains the basic tenets of Hindu personal law as the work is not merely confined to specific commentary but encompasses within itself the quintessence of the Smriti Law and its precepts and injunctions giving it the colour of a digest. Vijnaneshwara explains the meaning of abstruse passages, supplies omissions and reconciles discrepancies by frequent references to other old expounders of law2, thus analyzing the Yajnavalkya Smriti in great detail and synthesizing the various Smriti text. The primary source of Hindu law is common to all Hindus and became the subject for subsequent commentators since everyone was interpreting it in his own way so it gave rise to differences in the finished work. Added to this was the region wise acceptance of authority of superiority of a particular work and a comparative rejection of the other. Thus Mitakshara a commentary on the Yajnavalkya Smriti by Vijnaneshwara 3 became the authority for the whole of India except parts of Punjab4 and Bengal5. In Bengal also, Mitakshara is not rejected wholly but when there is a conflict between Dayabhaga Law 6 and Mitakshara Law, then Dayabhaga Law prevails. There are many places on which Dayabhaga law is silent so in that case Mitakshara law is applied in Bengal also. The modern Hindu law is in two parts. One, codified Hindu law, and the other is uncodified Hindu law. The former lays down a uniform law for the Hindus tempered marginally by custom in two areas, marriage and divorce and adoption. In the codified part of Hindu law, the schools have no relevance. But the schools of Hindu law are still relevant; more or less, the same way as they were before codification5.

1 2

Poonam Pradhan Saxena, Hindu Law and Usage, 2nd ed. 2007, p. 45. Mayne, Hindu Law and Usage, Ranganath Misra (ed.), 16th ed. 2008, p. 701. 3 Ibid. 4 Punjab was governed by the customary law. 5 Mulla, Principles of Hindu Law, Satyajeet A Desai (ed.), 21st ed. 2010, p. 210. 6 It was written by Jimutavahana in latter half of the twelfth century.

1.1 Research MethodologyThe researcher has adopted the doctrinal form of research in completing this project. As the project is primarily a socio-legal study on the origin, nature and construction of the Mitakshara coparcenary, the doctrinal form of research was most appropriate. Primary as well as secondary sources of information have been used from the NALSAR Law Library. The above category of material consists of law reporters such as AIR and SCC and commentaries on the Family law written by eminent authors. Also, secondarys, soft copy sources of information have been perused from online databases such as Manupatra, India Code and Judis. No part of this project is plagiarized and it is the original work of the researcher. 1.2 Research Plana. Aims and Objectives -Through this project the researcher aims to study the Mitakshara law and also how it is relevant in current days even when almost whole of Mitakshara law has been supplanted by various legislations like Hindu Marriage Act, Hindu Adoption and Maintenances Act, etc. b. Scope and limitations- Due to paucity of space and time to some extent, the researcher will be unable to include all the cases and limit him to analyzing and discussing only the relevant case laws directly related to the topic. c. Chapterization -The researcher has divided the project into the following chapters. The chapters are as follows: Introduction- the introduction aims at acquainting the reader with the topic in a very comprehensive manner. Mitakshara Hindu law and its journey amidst many legislative changes. Law of Partition under Mitakshara Hindu law and its current form. Conclusion- finally the projects is concluded with the researchers views and suggestions.

CHAPTER II 2. Mitakshara Hindu Joint Family. 2.1 Joint Hindu Family Hindu joint family is a kind of family system, which is typically seen amongst the Hindus only. The concept of Hindu joint family is nothing new, and it is in existence since long time. Hindu joint family is a normal condition of the Hindu society and its roots can be traced to the highly patriarchal society of Hindus in ancient times1. The institution of a Hindu joint family under the Mitakshara School of Hindu Law practiced in all the states except Kerala and West Bengal is unique and has no parallel in any ancient or modern system of law and jurisprudence2. It is a generally held opinion that in the ancient days, members of the family secure food for the family secure food respectively, put it in a single pot to cook and eat which gives rise to the definition of common hutch pot. Under the Mitakshara school of law, it is always presumed that every Hindu Family was a Joint Hindu Family3 which is common in food, worship and estate4 unless the contrary was proved but that does not mean that they must have a common kitchen. There was no escape for a Hindu (under this school) from being a member of the Hindu joint family5. The Uncodified Hindu Law still provides the law relating to Hindu joint family, coparcenary, partition, etc. Only in respect of marriage, succession, minority, guardianship, adoption and maintenance has the Hindu law been codified. It is needless to say that love and affection on the part of the family or manager of the family towards the junior members of the family makes him to earn for his family members and bring them up6. It is in respect and regard that the junior members of the family towards the head of the family, that keeps the family joint as long as love and affection and mutual respect in the family exist7. Joint hindu family is a normal condition of the Indian society. Ranging from grand father, father and sons constitute a Hindu joint family. So long as the grand father or the father is alive they would manage the joint family property and the joint family. The head of the joint family is called karta. Though its exact English translation is not available as there is no such concept in the west or any other system of law or jurisprudence. So in english, Karta is referred to as manager but thats not the exact term. A certain section
1 2

Poonam Pradhan Saxena, Hindu Law and Usage, 2nd ed. 2007, p. 69. Supra, n.1,p. 704; Babubhai v. Ujmal 1937 AIR (Bom) 446. 3 State Bank of Travancore v. Aravinan Kunju AIR 1971 SC 996. 4 Sri Raghunada v. Brozon Kishor (1876) 1 Mad. 69. 5 Pramath Nath v. Pradumya Kumar AIR 1925 PC. 6 Mitta Kuntha v. Nirrunjun, (1874) 14 Beng. 166. 7 Supra, n.4, p. 211; Anchuru v. Gurijala 1961 AIR (AP) 534.

of members of the joint family who are considered as the part of the coparcenary system has got a right in the joint family property8 by birth and this right can not be given to any other person by means of agreement, etc. Under Hindu law property is basically is of two types: joint family property and separate property. Each and every coparcener is entitled to enjoy the benefits of joint Hindu family property but the case is not the same with separate property. Any member of joint family may acquire property without the support of joint family property. The member who acquires separate property is entitled to possession and enjoyment of his property and no one else can claim a right over it. As far as joint family property is concerned, any of the coparceners of the joint family may seek partition and separate possession of his share of his joint family property9. There is a presumption that the family consisting of father and sons are joint10 but joint family may possess or may not possess joint family property11. If any coparcener of the joint family seeks to separate himself from the family, he may get himself separated by taking his share. Any member of the joint family may ask for the maintenance from the joint family property12 but only coparceners can claim ownership right over the property. After the death of the Karta, normally the eldest person in the joint hindu family becomes the manager or Karta of the family. In the absence of both father as well as the eldest son, next eldest member is at liberty to manage the affairs of the joint family property. He may contract debts for family necessities and they will be binding upon other members of the family13. The manager or the Karta is also entitled to mortgage or sell the joint family property for the benefit of estate, legal necessity and legal and indispensable duties as held in Hanooman Prasads case. Joint family is a special program for the purpose of coexistence in Hindus. In Muslims and Christians who profess their personal laws do not have joint family, or the concept of joint family property. If the grandfather dies, his property devolves over to the father and such property is his separate property. His sons do not have a right by birth as found in Mitakshara Hindu joint family.

8 9

Shadi lal v Lal Bahadur 1933 AIR (PC) 85. Ram Kumar v. Commissioner income tax 1953 AIR (All) 150. 10 Nagehsar Baksh Singh v. Ganesha 11 Paras Diwan, Family Law, 3rd ed. 2005, p. 338. 12 Bhagawati Prasad v. Rameshwari kuer, 1952 AIR(SC) 72.. 13 Supra, n. 11, p. 354.

2.2 Coparcenary under Mitakshara Hindu law Coparcenary rights under traditional Mitakshara law vested with only male members born in the joint Hindu family. Under traditional Hindu law a coparcenary is a narrower body of persons with in the joint family consisting of father, son, sons son and sons sons son. The basic purpose for understanding the concept of coparcenary was spiritual in nature as Vijananeshawara has defined coparceners as those persons who are entitled to offer funeral cake to the father and this includes son, son of the son(grandson), and son of a son of son(great grandson)14. The Mitakshara coparcenary is based on twin notions of sons birth right and devolution of property by survivorship. A coparcener has an interest by birth in the joint family property, though until partition takes place this is an unpredictable and fluctuating interest which may be enlarged by the deaths in the family and may be diminished because of births in the family15. There is a community of interest and unity of possession. The nature of ownership in the Mitakshara joint family is community ownership. No individual may say that he owns it or some property belongs only to him; it is always familys property. Since it is an ancestral property he cannot claim an absolute ownership of the property as it will vest in all the persons born in the family16. The remarkable feature of interest by birth is that the interest which a coparcener acquires by birth is not a specified or fixed interest17. At no time before the partition it may be predicted that he is entitled to so much shares in the joint family property. One of the features of the mitakshara joint family system is that one is born with the property18. The unique feature of mitakshara coparcenary system is that though all coparceners hold joint family property in communality, each coparcener enjoys several rights, including the right of disrupting the coparcenary by his unequivocal and unilateral right of dissolution of the joint family19. 2.3 Rights of a coparcener The Mitakshara Coparcenary accords a certain degree of rights to all its members. These rights emanate from the birth and since every person is given a right in the joint hindu

14 15

Poonam Pradhan Saxena, Hindu Law and Usage, 2nd ed. 2007, p. 99. Gangasahai v. Lekhraj Singh. (1887) 9 All 253. 16 Sunder lal v. Chittar Mal. 17 Jatru Pradhan v. Ambikaji, AIR 1957 Pat. 570. 18 Indranarayana v. Roopnarayana, AIR 1971, SC 1962.Error! Bookmark not defined. 19 Supra, n. 1, p. 736.

family so addition of a member in the family reduces the share of other persons and death of a person increases the share of other persons of the joint family. The main rights accorded to a coparcener (the male members) arise on partition. While the rights are numerous and too detailed for a thorough explanation, the main right is definitely the right to demand partition. An important point is that a coparcener can not challenge an alienation by the Karta 20 but it can claim its share and thus stop karta from alienating his share.21 The ancillary rights are discussed below and the main right to partiton is discussed in detail. 2.3.1 Community of interest and unity of possession One of the basic features of coparcenary in traditional Mitakshara hindu law is unity of possession and community of interest.22 This right forms the backbone of the Mitakshara coparcenary. As stated in Katama Natchiar v. Rajah of Shivagungahi23 No coparcener is entitled to special interest or exclusive possession of any property. 2.3.2 Joint possession and enjoyment Every coparcener is entitled to unobstructed use of the family property24. On being denied such a right he is entitled to enforce his right by way a suit. He cannot bring a suit for partition in this case.25 If, in case a coparcener is excluded by the other coparceners from the use or enjoyment of the property the courts may by an injunction restrain the defendants from obstructing the plaintiff from the use of the property. This was laid down by the Bombay High Court. 26 Though a coparcener can be ousted from enjoyment of the joint family property only when he turns to be a nuisance to the family members or his continued presence is a threat to the peace and danger to the life of other members in the family. 27 But the courts can grant him a decree if the ouster is unjustified.28 2.3.3 Right to maintenance Every coparcener is entitled to be maintained out of the ancestral property. The karta of a joint Mitakshara family is under a obligation to maintain all male members of the family,

20 21

Sunil Kumar v. Ram Prakash. Nuniyappa v. Ramaiah. 22 Katama Natchiar v. The Rajah of Shivganga (1863) 9 MIA 539. 23 Ibid. 24 Appovier alias Seetarmier v. Rama Subba Aiyan AIR 1967 SC 1124. 25 Supra, n.3, p.268. 26Anant v Gopal 1895 19 Bom. 269 27 Poonam Pradhan Saxena, Hindu Law and Usage, 2nd ed. 2007, p. 117. 28 Narambhai v. Ranchod 3 Bom LR 598.

their wives and their children. On the death of any of the members he is bound to maintain his widow and his children. This obligation arises from the fact that he is in possession of the joint family property. 2.3.4 Right of survivorship Coparceners have a right in the joint family property by birth and the moment a son is born in the family he acquires a right in the joint family property. Where a coparcener dies before the partition of the joint family property, his undivided interest devolves not by succession but by survivorship subject to the right that where the deceased coparcener leaves male issue, they represent his rights to a share on partition.29 Right to survivorship is the reason for fluctuating interest in the share in joint Hindu family property. 2.3.5 Right to ask for partition The interest of a coparcener is a fluctuating interest but Mitakshara hindu law gives him an option to convert his fluctuating share into a fixed share by means of asking for partition except in Bombay30 and Punjab31, where a son cannot ask for partition without the consent of his father but in other areas he is fully entitled to ask for partition32. Every adult coparcener is entitled to enforce partition of the joint family property. The institution of a suit of partition amounts to an intimation by the plaintiff to his coparceners of his unequivocal desire for separation from the joint family. A suit for partition may be brought on behalf of a minor, however the courts need not decree a partition unless they feel the partition will be for the purpose of the benefit of the minor either by advancing his interests or protecting them from danger. This was stated by the courts in Pedhasubbaya v. Akkamma33 In a Mitakshara coparcenary, the son, the grandson and the great grandson is entitled to claim partition of the movable and immovable property of the joint family against the father grandfather or the great grandfather even without the latter's approval or consent, the exception being the Bombay School. One of the main questions that need to be asked is whether a descendant who is more than four degrees removed from the common ancestor can ask for a partition; this question was answered by the courts in Moro Vishvanath v. Ganesh

29 Katama Natchiar v. Rajah of Shivagungah 863 MIA 593,543, 615. 30 Apaji v. Ramchandra (1812) 16 Bom 29. 31 Gahru Ram v. Hardevi AIR 1922 Bom Lah 85. 32 Digambar v. Dhanraj (1922) 1 Pat 361. 33 AIR 1958 SC 395

Vital.34 After a long analysis the Courts decreed that the rule on the subject is not that a partition cannot be demanded by one more than four degrees removed from the acquirer or original owner of the property sought to be divided but that it cannot be demanded by one more than four removed from the last owner, however remote he may be from the original owner. 2.3.6 Right to Partition of Disabled and Absent Coparceners Persons who by Hindu law are disqualified from inheriting are also disentitled to a share on partition. However where a member of joint family had acquired by birth an interest in the property, a later supervening disqualification while it may debar him from claiming a partition will not prevent him from acquiring the property by survivorship.35 An absent coparcener on the other hand, stands on the same footing as a minor and his right to share extends to his descendants. The rights of his descendants would however be subject to the law of limitation 36 2.3.7 Right to renounce his interest in joint family property Every coparcener who has an interest in the joint family property has fill right to renounce his interest in the property and if he does do then doctrine of survivorship will follow and his share will be equally distributed among others. Two things are important here. Firstly renunciation of his total property 37 , he cannot renounce a particular part of his property, ie either he renounces his total interest or does not renounce at all. Secondly he should renounce his total interest to all, he cannot renounce his total interest in favour of some 38 . The coparcener who renounces his interest is not entitled to get a share in the property in case of a partition but a renunciation of interest in favour of the coparceners after agreeing to receive maintenances is valid.39 A renunciation is entirely different from partition as renunciation only decreases the number of shares in the property and it has no effect on the property.40

34.10 Bom. HCR 444 35 Mulla, Principles of Hindu Law, S.T.Desai (ed.), 16th ed. (2nd reprint) , 1992, p. 155 36Under the Indian LimitationAct ,1963, Schedule Arts. 65 and 110. 37 Alluri Venkatapathi v. Dantaluri Venkata Narasimha AIR 1936 PC 264. 38 Chaudhary Raghubans Narain Singh v. State of Uttar Pradesh AIR 1972 SC 2096. 39 Krishna Namboodri v. Chena Kesavan AIR 1956 Ker 336. 40 Guruswamy v. Mallappa AIR 1950 Mad 140.

CHAPTER III Joint Hindu Family in Current times 3.1 Coparcenary in current times After the amendment in Hindu Succession Act in 2005, currently the joint Hindu family also includes daughters, daughters of the son, and daughters of grandson by virtue of section 6 of the Hindu Succession Act, 1956(hereinafter the act). The amendment has made women also a coparcener in the joint family property. Now since women is also a coparcener so a debate is going on whether a women can be karta or not. The Nagpur High court has held on the matter that mother, though not a coparcener, can be, in absence of adult male members, karta of the joint hindu family, and her acts will be binding on other as that of a Karta. But the Supreme Court of India differed from this view of the Nagpur High court and said that a women can not be a karta as it is against the basic tenets of the hindu jurisprudence, which forms the basis of joint Hindu family1. This judgement of the Supreme Court of India is in accordance with the texts. The sages are of the view that only a coparcener can be a karta and after the amendment of 2005, a women is also a coparcener and thus she can also be a coparcener. This amendment has considerably changed the structure of joint Hindu family as opposed to those according to Mitakshara. Now a women can also be a coparcener and this has led to widening of the arena called coparcenary. Since a coparcenary is a narrower part of the joint hindu family and after marriage a women still remains coparcener in the family of his birth by the virtue of section 6 of the act. So it can be argued that a women does not loose her membership of the family of her birth as she is still a part of the narrower part of the joint hindu family. Hindu Succession Act, 1956 conferred a equal right on daughters with the sons when inheritance opens, that is, when the father dies. The enactment did not place the daughters on par with the son. The Amendment Act by Andhra Pradesh legislature confers a right on the daughter to claim a share even during the life time of the father that is, daughter is also provided with birth right to claim a share in the joint family share. As stated above the concept of joint family is confined to Hindu community of all castes. So far as the certain aspects of joint families changes are made by adoption, separate acts such as Hindu Minority and Guardianship Act, 1956, Hindu Adoption and Maintenance Act, 1956, Hindu Marriage Act, 1956 and Hindu Succession Act, 1956.
1

Commissioner of wealth tax v. Seth Govind Ram (1966) S.C. 1953.

3.2 Effect of Amendment in Hindu Adoptions and Maintenance Act Now after the amendment in Hindu Adoptions and Maintenances Act (hereinafter HAMA) a women is also entitled to adopt a son. This also has a major effect on the structure of family in India, though the change is positive but again it is a change in the structure of families in India. Now a son can be adopted by an unmarried woman also and in such case if the women doesnt marry then the child will be a member of the family of the father of the woman adopting the child. Though the concept of Aurosa son was in Hindu jurisprudence since time immemorial but now it has gone considerable changes as earlier a women was entitled to adopt only on behalf of his husband and not otherwise and since while adopting she was a mere representative of her husband so the consent of her husband was necessary for a valid adoption2 and thus an unmarried woman was not entitled to adopt a son. Earlier a coparcener cannot adopt a son against the wishes of other coparceners3 but now since woman is also a coparcener and she is entitled to adopt own her own so the amendment has also considerably changed this position of Mitakshara Hindu law. 3.3 Conclusion Though it can be argued that the amendments has led to much lesser relevance of Mitakshara in current times but here I would like to argue that though the form of Mitakshara has been changed considerably but still it is the driving force behind all this as it was Mitakshara which was the most progressive commentary of its time and because of this it invited criticism of a lot of sages but it emerged victorious and everyone agreed with it. In its own time Mitakshara was very progressive and it also gave women a lot of rights as compared to Manusmriti and even in current times we are doing the same and it is in greater harmony with the society. Since the society is a dynamic thing and so is law so the law shoudh change according to the change in society and this thinking was furthered by Mitakshara. So here we can say that though the form of law under Mitakshara is being changed but still we are doing all of it because of the spirit of Mitakshara, which is still very relevant.

2 3

Sannamma v. Erappa AIR 1950 Mysore 77. Venneti Sundara Rama Rao v. Smarthy Satyanarayananurty AIR 1950 Mad 74.

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CHAPTER IV 4. Law of Partition 4.1. PROPERTY DIVISIBLE ON PARTITION. In case of a partition there are issues to be cleared before the partition can be made such as the liabilities that ought to be cleared before the partition is made, these are as follows:1. Marriages of family members especially daughters/sisters for which a certain share of money has to be kept aside.1 2. Debts or liabilities incurred on behalf of the family or for the liabilities of the joint estate. 3. Debts due to or claim against the family.2 Debts incurred by the Karta 1. The debts incurred by the father neither illegal nor immoral has to be cleared before the property can be partitioned, also the other family debts. 2. It was held that the male coparceners of the family had no legal right to retain any share for their marriage expenses. This was under the concept that there was no definite samskara that required it to be a customary duty.3It was also laid down under the Mitakshara law that the son is not entitled to ask for a share in the property during the lifetime of the father when the father himself is not separated from his brothers, this was a decision established by a full bench in Bombay high court.4 3. However there is a requirement that there should be provision made for the daughters to be married off since it is a part of the Hindu samskara that it is the duty of the family to get the daughter/sister married off5. The Mitakshara law stands that the daughters are entitled for maintenance in their fathers estate up till their marriage. The marriage expenses of a daughter should come from the fathers property than the joint family property.6 As per the Hindu law the sons are bound to perform at their own expense the funeral ceremonies of their widowed mother. It is important to note that if no provision has been

Yajnavalkya says, Uninitiated sisters should have their ceremonies performed by those brothers who have already been initiated, giving them a quarter of ones own share. Yajna 11 124; Rangnnath Mishra. (ed.) Maynes HINDU LAW AND USAGE, 15th ed. 2003, p.853. 2 Supra,n.1,p.439. 3 Ramalinga v Narayana(1922)49 IA 168. 4 Apaji v.Ramchandra(1892) 16 Bom 29. 5 Rajagopala v Venkataraman(1947) 2 MLH 37. 6 Ramachandra v Seenithlal 1954 Mad 1011.

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made exclusively for this purpose, then if one of the sons performs it at his own expense he is entitled to a contribution from his brothers7. Partition can be executed without a registered document in Hindu law. Even a family compromise between the coparceners would be sufficient to affect a partition and by virtue of that they become entitled to individual share and use thereof.8 The father can affect a partition even during his lifetime among his sons. A partition could also take place by (i) (ii) (iii) agreement, institution of a suit to that effect, arbitration9

4.2 PROPERTIES WHICH ARE NOT CAPABLE OF DIVISION. There may be certain species of joint property which are, by their nature, incapable of division. Such properties can not be divided. Thus, wearing apparel carriages, riding horses, ornaments, cooked food, water, pastures, female slaves, roads, dwelling house, garden, utensils, documents, implements, right to way, staircases, wells, tanks, etc. have been considered indivisible. Three methods in case of indivisible properties is followed: 1. Some of these properties may be enjoyed by coparceners jointly or by turns. 2. Some of these properties may be allotted to the share of a coparcener and its value adjusted with the other property allotted to other coparceners. 3. Some of these properties may be sold and the sale proceeds may be distributed among the coparcener. 4. Idols and Places of worship: They are not divisible, so they may be held by the members in turns, or the court may direct their possession by the senior member with liberty to other members to have access to it for the purpose of worship. 10 Similarly, a thakurdari11, book keeping records of the yajamans12 can be divided. 4.3. PERSONS ENTITLED TO A SHARE ON PARTITION. Every coparcener is entitled to a share upon partition. However every coparcener does not have an unqualified right to enforce or sue for partition.

Vaidyanath v. Aiyasami (1909) 32 Mad 191; Satyajeet Desai (ed.) Mullas Hindu Law, Vol.-1,18th ed. 2004, p. 575. 8 Digamber Patil v. Derian Patil, AIR 1995 SC 1728 9 U.P.D.Kesari, MODERN HINDU LAW, 1st ed. 1996, p 343. 10 Damodardas v. Uttamram (1893) 17 Bom. 271, Pramath Nath v. Pradumya Kumar AIR 1925 PC 139. Mitta Kuntha v. Nirrunjun, (1874) 14 Beng. 166. 11 Madan mohan v. Shaha, 124 IC 327. 12 Heir of Barot Dansang Hirji v. Barot Kanji Hirji, AIR 1999 Guj 27.

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Sons and grand sons- Under the Mitakshra law, all, the sons, the grandsons, the great grandsons and other adult male members of the coparcenary can demand the partition even as against the consent of the others. The court in the case of Puttorangamma v. Rangamma13 a suit for partition and separate possession of the family property by one of the coparceners is maintainable even if their father is joint with his brothers and doesnt will to accept the partition. Sons born after Partition: There is a difference of opinion among the various scholars; Yajnavalkya holds the view that, the partition has to be opened up again, in order to give the after-born son the share which he would have had if he had been in existence at that time.14 Whereas Manu along with some others like Narada and Gautama holds the view that, the after-born son is to receive share only from his father, but in case father has re-united with his brothers, he is to share with them.15 Son begotten at the time of Partition: This means that son who is in his mothers womb at the time of partition is entitled to a share, although he is born after partition as if he was in existence at the time of partition. If a share is not reserved for him he has complete rights to open partition and seek his claim16. After born Son: If the reserves a share for him a son begotten and born after partition cannot reopen partition. This son will be a coparcener with his father and after fathers death would be entitled to inherit the whole of separate property of father, to the entire exclusion of separated sons17. In case the father has not kept anything aside as his share the son born as well as begotten after partition is entitled to have the partition reopened not only in the property that stood at the time of partition but also in the accumulations made with the help of the property.18 Illegitimate Son: The illegitimate sons of the three higher regenerate classes are not entitled to claim partition19. In case of Mitakshara School of law, the son of a Sudra does not acquire by birth any right in his fathers property and hence cannot enforce partition in his lifetime20. But the Supreme Court had held in the case of Gur Narain Das v. Gur Tahal Das21, that

13 14

AIR 1968 SC 1018, Abu Hamir v. Aher Duda, AIR 1978 Guj 10. Yajna, II, 122; Rangnnath Mishra (ed.), Maynes HINDU LAW, 15 th ed. 2003, p.857. 15 Manu, IX, 216; Nar XIII, 44; Gaut XXVIII, 29; Rangnath Mishra (ed.), Maynes HINDU LAW, 15 th ed. 2003, p.857. 16 Jagat Krishna v. Ajit Kumar, AIR 1964 Ori 75. 17 Shivajirao v. Vasantrao (1909) 13 Bom 267. 18 Chengama v. Munisama (1897) 20 Mad. 19 Roshan Singh v. Balwant Singh (1900) 22 All 191, 27 IA 51. 20 Raja Jogendra v. Nityanand, (1891) 18 Cal 151. 21 AIR 1952 SC 226.

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though a an illegitimate Sudra son cannot claim partition in the lifetime of his father, he can do so after his death if the father was separate from his collaterals. Apart from those mentioned above, there are some other members who have the right to entitlement in the property even though they themselves cannot claim for it. Minor Coparcener: A suit for partition can be brought on the behalf of a minor only if it is for the benefit of the minor, and advancing his interest. In a Supreme Court case it was held that the court should be satisfied that the next friend of the minor has, in instituting a suit for partition acted in his interest.22 An absent coparcener stands on the same footing as the minor. Wife: A wife cannot herself claim partition23 but when it takes place between her husband and his sons she is entitled to a share equal to that of a son and she can enjoy that separately from her husband24 except in South India where it has since long been an obsolete practice. Mother: Widowed mother has right to equal share as that of her sons only when partition by metes and bounds takes place 25 . In Dayabhaga School a widow becomes the heir of her husband, if he leaves no male issue whether he is undivided or not. 4.5. Mode of Partition Partition can be made by a definite, unambiguous declaration of intention by any member to separate himself from the family. If this is done, it would amount to division of status, whatever mode may be used. a) Partition by suit b) Partition by agreement c) Oral Partition d) Unilateral declaration e) Partition by arbitration f) Partition by conduct g) Automatic severance of status h) Parties to Partition i) Registration of Partition deed 4.5.1. Partition by suit When a coparcener files a suit for partition, it amounts to unequivocal intention to separate and there is a severance of status from the date the suit is instituted. There is no
22 23

Pedasubhhayya v. Akkamma, AIR 1958 SC 1042; Venakata Reddi v. Lakshamma, AIR 1963 SC 1601. Punna Bibee v. Radha Kissen (1904) 31 Cal 476. 24 Shiromani v. Hem Kumar AIR 1968 SC 1299. 25 Pratapmull v. Dhanbatti 1973 P.C 21; Paras Diwan, Modern Hindu Law, 15 th ed. 2003, p.333.

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requirement that the partition has to be affected by a court order.26It was held by the Madras high court that once a suit of partition had been brought about and there was a partition there could be no revocation.27 4.5.2 Partition by agreement A partition can take place with an agreement between two parties. The Privy Council held that an agreement between the coparceners to hold and enjoy the property separately would signify partition even if actual partition didnt take place.28 4.5.3 Oral Partition In 1846 the Privy Council held that oral partition can be considered a valid form of partition.29 4.5.4Unilateral declaration Partition means severance of status as well as division of property by metes and bounds. The latter is a consequence of the former, which may be brought about by a private agreement, at the intervention of the Court, or by arbitration, but for the former no second agency is necessary. 4.5.5 Partition by arbitration A partition may be affected by arbitration. If members of joint family enter into an agreement under which they appoint arbitrators for dividing the joint family property among themselves, the severance of status takes place from the date of the agreement.30 4.5.6 Partition by conduct: Separation can be defined by the conduct. Separation of food, worship, dwelling Separate enjoyment of the property, income and expenditure, Separate business, transaction etc. can be considered as partition. 4.5.7 Automatic severance of status There is an automatic severance of status if a coparcener converts into another religion. It merely means that he loses his right to survivorship.31

26 27

Palani v. Muthuvenkatacharalu, AIR 1925 PC 49. K. Radhakrishna v. Satyanarayan , AIR 1949 Mad. 173. 28 Pooruandachiv. Gopalasami, AIR1936 PC 281. 29 Rewan Prasad v. Mst Radha (1856) 4 MIA 137. 30 Kasinath v. Narsingsa, AIR 1961 SC 1077 31 Paras diwan, Family law,7th ed 2005, p 429.

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4.5.8 Doctrine of Representation Under the Mitakshara School, coparceners interest devolves by survivorship. This is subject to the rule that where a deceased coparcener leaves male issues, the latter represent their ancestor in a partition, and take his share, provided that such issues are within the limit of coparcenery. 4.6 Hindu Law Of Partition And The Hindu Succession Act (Amendment) Act 2005 The recent amendment has abolished the previously existing doctrine of survivorship and given more rights to the female members of the family. The following changes are what are brought about effectively by the amendment.32 The share of the pre-deceased son or a pre-deceased daughter shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter. The daughter shall be subject to the same liability in the said coparcenery property as that of a son; and any reference to a Hindu Mitakshara coparceners shall be deemed to include a reference to a daughter of a coparcener; The daughter of a coparcener cell by birth become a coparcener in her own right in the same manner as the son; The daughter is allotted the same share as is allotted to a son The share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter. The daughter has the same rights in the coparcenery property as she would have had if she had been a son;33 It has become quite evident now that the concept of gender inequality now ceases to remain in Hindu Succession Laws. This proposal came from the Report of the 174th Law Commission, 34 which suggested that the earlier Section 6 be removed. Under the Mitakshara System of Joint Family, which prevails in all parts of India apart from Bengal only males are members (coparceners) of the Joint Family and the right to inheritance was by way of survivorship and not by way of succession. Under Hindu law, a joint family consists of all male members, their wives, sons and unmarried daughters. The notion is that once a daughter is married, then she shall become

32 33

Report of the 174th Law Commission, 2000. Ibid. 34 Id.

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a member of her husbands joint family35. However, if the daughter is now a coparcener, will her coparcenary status be affected after her marriage is the question to be answered. This situation actually creates a diversion in the understanding of a coparcener and a joint family member. Under such circumstances, it is assumed that the married daughter will cease to remain a member of her fathers coparcenary but will however retain her coparcenary status with that family. The bench of Orissa high court pronounced its judgment in Mahanti v Oluru 36 declaring that daughter is entitled to claim partition when property is inherited by a single male heir.

35 36

Chotey Lal v. Jhandey Lal, AIR 1972 All. 424. AIR 1993 Ori 36 (FB).

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CHAPTER V Conclusion Mitakshara was the first among the secular texts1 of India as before that all the smritis and commentaries were religious in nature. As Mitakshara was written in 12th century and by that time there was a lot of change in society as society is very dynamic. So this way Vijananeshwara was trying to change the law according to the society as law is embedded within the society. In Dayabhaga the unborn son in the mother's womb cannot inherit a share in the property, because an unbornson cannot perform Shraddha. On the other hand, in the Mitakshara an unborn son in the mother's womb gets a share inthe ancestral property. Dayabhaga prefers the father to the mother, because he presents two oblations in which the deceased son participates, while the mother presents none. Vijnaneshwara takes exactly the opposite view on theground that "her propinquity is greatest". The view of Vijnaneshwara is reflected in the Hindu Succession Act, 1956because the mother of a deceased Hindu is a Class I heir, and is hence automatically entitled to a share in the propertyof her deceased son, whereas the father is only a Class II heir, and will only get the property if there is no Class I heir. Thus even today a mother's position is higher than the father so far as succession is concerned, and this is in accordance with Vijnaneshwara's view. Similarly, the right of a daughter to succeed is rested by Jimutavahana upon the funeral oblations which may be hoped for from her son, and the exclusion of widowed, or barren, or sonless daughters, is the natural result. The Mitakshara follows Brihaspati in basing her claim upon simple consanguinity. As a son, so does the daughter of a man proceed from his several limbs. How then can any other person take her father's wealth? And he excludes neither the widowed nor the barren daughter, but prefers one to another, accordingly as she is unmarried or married, poor or rich, that is, according as she has the best natural claim to be provided for. Apart from the above, the Mitakshara of Vijnaneshwara liberalised the law with regard to women. He provided for maintenance not only of the chaste wife but also the unchaste wife and unchaste widow. Also, while earlier writers circumscribed women's property within the narrow limits prescribed by Manu, Vijnaneshwara included all property however acquired within the definition.

It is reflected in his interpretation of the term Sapinda. He interpreted it in a very secular manner.

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So a few things which can be deduced from Mitakshara is that it was first move towards secularism in smritis and commentaries and in current days it is very necessary for a nation like India. Mitakshara also was liberal towards women in its own time, since time has changed now and so we might feel how discriminating that was but the reality is that in its own time it was liberal towards women and thats why Mitakshara has to face criticism of many scholars. In current days we are also doing the same thing by giving women more right. So here it is put forward that in current times Mitakshara law is not being followed as it is but the spirit of Mitakshara is still there and that is whats relevant in modern times. This reminds me of a famous verse from Srimed Bhagvadgita and that is:

oklkafl th.kkZfu ;Fkk fogk; uokfu x`gkfr ujksijkf.k rFkk kjhjkf.k fogk; th.kZk U;U;kfu la;kfr uokfu nsgh2
This verse means that As a man shedding worn-out garments, takes other new ones, likewise, the embodied soul, casting off worn out bodies, enters into that are new.

uSua f{kUnfUr kk=kf.k uSua ngfr ikod% u pSua DySn;UR;kiks u kksk;fr ek#r%
This verse in English reads as follows Weapons cannot cut it nor can fire burn it; water cannot wet it nor can wind dry it. Though we have changed the Mitakshara law completely but even now that change has an element of spirit of Mitakshara contained in it. Just like when the old and archaic Mitakshara was not able to meet the needs of modern society, then the spirit of Mitakshara changed its body. And though Mitakshara was written in 11th century but even still its spirit is present in the Hindu Law.

Verse 22, Chapter 2 Srimad Bhagvadgita.

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Bibliography BooksAcharya Shukledra, Hindu Law, 1st ed. 2003, Modern Law Publications, Allahabad G C V Subba Rao and Vijender Kumar, Family Law in India, 8th ed. 2003, (1st rep. 2004), S Gogia and Company, Hyderabad J D M Derrett, Essays in Classical and Modern Hindu Law, 1st ed. 1978 (1st Indian rep. 1995), Universal Book Traders, Delhi. Mayne, Hindu Law and Usage, Ranganath Misra (ed.), 15th ed. 2003, Bharat Law House, New Delhi Mulla, Principles of Hindu Law, Satyajeet A Desai (ed.), 18th ed. 2004, Butterworths, New Delhi Paras Diwan, Law of Joint Family System, 1st ed. 1993, Wadhwa and Co., Allahabad Paras Diwan, Modern Hindu Law, 16th ed. 2005, Allahabad Law Agency, Faridabad Poonam Pradhan Saxena, Family Law Lectures, 1st ed. 2004, Butterworths, New Delhi Ranbir Singh and Vijender Kumar, Reading Material-Family Law-II, 2005, Nalsar University of law, Hyderabad Werner F Menski, Modern Indian Family Law, 1st ed. 2001, Oxford University Press, New Delhi Werner F Menski, Hindu Law-Beyond Tradition and Modernity, 1st ed. 2003, Oxford University Press, New Delhi Paras Diwan, Family Law, 3rd ed. 2005, Allahabad Law Agency, Faridabad. Websiteshttp://www.manupatra.com. http://www.scconline.com.