Hindu Joint family & Hindu Undivided Family

Q.15 Explain the concept of the Hindu joint family. Differentiate between Mitakshara and Dayabhaga joint family systems in India.

Q.15 (b) Define the concept of a Hindu undivided family (HUF).

Ans.  Meaning of Joint Family:-

A Joint Hindu Family is meant a family consisting of a male ancestor with his lineal descendants in the male line, howsoever removed, together with the wives, widows and unmarried daughters of the ancestor and such descendants. In other words, a Joint Hindu Family consists of persons male or female, who are born into the family or are introduced into it by adoption or by marriage in the case of females, each member thereof being united by the tie of sapindaship which may arise by birth, marriage or adoption.

A Joint Hindu family confers status on its members which can be acquired only by birth in the family or by marriage to a male member. Within its fold, no outsider, except by adoption, can be admitted by agreement or otherwise. It is a unit and in all affairs, it is represented by its Karta or Head. On marriage, a daughter ceases to be a member of her father's family and becomes a member of her husband's family.

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Ordinarily, an undivided Hindu Family is joint not only in the estate but also in food and worship. However, the existence of a joint estate is not absolutely necessary to constitute a joint family and it is possible to have a joint Hindu family which does not own any estate. But if a joint estate exists and the members of that family become separate in the estate, the family ceases to be joint. However, mere separation in food and worship does not operate as separation; Chowdhry Ganesh Dutt v. Jewach, (1904) 31 IA 10.

 

The joint family system is organised on the principle of subordination and not on that of co-ordination or equality of the members with respect to rank and position under it. No two persons can be equal. One of them must be superior and other inferior relatively to each other. It has been observed by the Supreme Court. In Surjitlal Chadha v. Commissioner of Income Tax, AIR 1976 SC 109, that the Joint Hindu Family is a large body consisting of a group of persons who are united by the tie of sapindaship arising by birth, marriage or adoption. The fundamental principle of the joint Hindu family is the Sapindaship.

Exit

The status of being a part of the Joint Hindu Family can be ceased in the following cases:

·         By conversion to another religion or faith.

·         By marriage to a non-Hindu(a person who is not Hindu as per Section 2 of the Hindu Marriage Act, 1955 which includes a Muslim, Jew, Parsi or Christian by religion).

·         By being given in adoption to a third party by the competent parents.

·          By the marriage of a daughter.

Mitakshara Joint Hindu Family.

A Mitakshara Joint Hindu Family possesses the following features:

 

(1) It consists of persons who are bound together by the tie of sapindaship arising either by birth, marriage or adoption; it is a creation of Hindu law and cannot be created by contract and arises simultaneously on the birth, marriage or adoption of a person.

(ii) There can be no limit to the number of members of such a family nor can there be a limit to the remoteness of their descent from the common ancestor or the distance separating one member from the other, in respect of relationship.

 

(iii) To the continued existence of a Joint Family the existence of a common ancestor is not necessary. A joint family may consist of only the descendants of a common ancestor.

(iv) A joint and undivided family has no fixed number of members, it is a constantly fluctuating body of persons, the number increasing on births, marriages of males and adoption and decreasing on death, (natural or civil) marriage of daughters and widows (and marriage of males under the Special Marriage Act, 1954), partition, death and by renunciation and acquiescence of the members if manifested by some overt act.

 

(v) A Joint Hindu family to continue to remain joint does not require that the members should live in common by partaking food together and worshipping jointly.

 

(vi) For a Joint Hindu Family the possession of joint property is not essential. If the family possesses property, that is merely an accident. For the formation of a Joint Hindu Family not even a nucleus of property is necessary, what is necessary is merely the sapinda relationship.

 

(vii) A Joint Hindu Family continues to remain joint until it is determined by the act of its members, e.g. partition or by law, when the entire unity of the family may be disrupted or only a specified number of members break away from the family. A joint family continues, even on the death of all its members, provided there is a person (male or female) living, capable in nature or in law of adding a member to it.

Differences between Dayabhaga Joint Family and Mitakshara Joint Family:

 

A Hindu Joint Family governed by Dayabhaga Law differs from the one governed by Mitakshara Law and main points of distinction between the two systems are as under :

 

(1) Under the Dayabhaga law, the sons do not acquire any interest in the ancestral property by birth. Their right arises for the first time on the death of the father. Even on such a death, they take the father's Property, whether separate or ancestral, as heirs and not by survivorship. Since the sons do not take any interest in the ancestral property as long as the father is alive, there can be no coparcenary, in the strict sense of that term between father and his son under the Dayabhaga Law. Under the Mitakshara Law, each son acquires at his birth an interest equal with his father in all ancestral property held by the father, and on the death of the father, the son gets his property, not as his heirs, but by survivorship.

 

(2) Under Dayabhaga Law, the father can dispose of property whether movable or immovable by sale, gift, will or otherwise in the same way as he can dispose of his separate property. But the power of the father to dispose of ancestral property under the Mitakshara Law is restricted and limited.

 

(3) Under Dayabhaga law, the sons cannot claim partition of ancestral property from the father but under Mitakshara law they can claim it.

(4) Under Dayabhaga law the male issues of a Hindu acquire property only on the death of father but not acquire any interest in such property by birth just as they do under the Mitakshara Law.

 

(5) A Coparcenary under Dayabhaga Law consists of male as well as female. However, under Dayabhaga Law a coparcenary cannot start with female like under Mitakshara Law.

 

(6) In Dayabhaga law the foundation of a Coparcenary is laid on the death of the father and when he does leave two or more male issues the coparcenary is first formed. Under the Mitakshara Law the foundation of a coparcenary is first laid on the birth of a son in the family and father and son immediately become coparceners.

 

(7) Under the Dayabhaga Law every coparcener takes a definite share in the coparcenary property. Like his separate property, the ancestral property also passes by succession to his heirs and not by survivorship to the remaining coparceners. While under the Mitakshara law the ancestral property devolves on coparceners by survivorship.

 

(8) Under Dayabhaga Law essence of Coparcenary is unity of possession and there is no unity of ownership at all because the ownership of the coparcenary property under the Dayabhaga system is not in the whole body of coparceners but every coparcener takes a definite share and he is the owner of that share. Under the Mitakshara Law coparcenary is unity of ownership.

 

(9) Under Dayabhaga Law since every coparcener takes a defined share of the coparcenary property, he can alienate his share by sale or mortgage or dispose it of by gift or will in the same manner as he can dispose of his separate property. Under Mitakshara Law a coparcener cannot transfer inter vivos his interest without the consent of other coparceners.

 

(10) In Dayabhaga Law a purchaser at a court sale of a share of a coparcener is entitled to be put into joint possession with the other coparceners to the extent of the share purchased. In Mitakshara, he does not acquire any such right.

 

(11) Under Dayabhaga Law a female like widow or daughter can be coparcener along with males. Under Mitakshara Law no female can be a coparcener.

 

(12) The Dayabhaga Coparcenary system is more progressive while the Mitakshara Coparcenary system is orthodox..

Advantages of Joint Hindu Family System

 

(1) Joint Hindu Family system works smoothly as it contains all persons lineally descended from a common ancestor.

(2) It exhibits its strength by unity of all members with love and affection.

(3) Mutual cooperation, integrity, stability etc. can be found in Joint Hindu Family.

 

(4) The younger ones obey the elders who care for them.

(5) The household expenses per head are very low.

(6) Financial security is the result of this Joint Hindu Family system.

(7) Due to division of labour, the returns of family income are high.

(8) The decisions are taken by the karta, who is an experienced elder.

(9) A Joint Family can acquire large landed property and the produce will be higher with lesser costs.

(10) There are certain benefits for Joint Hindu Family in the Income Tax Act.

 

(11) The Joint Hindu Family is a floating island having its own specific characteristics of religion, economy, custom and caste systems. It did not allow foreigners to enter into their island. It saved the villages from external aggression and religious conversion. Though the system of Joint Hindu Family is fading away, even now the remnants of this system are inherent in entire India.

 

Disadvantages of Joint Hindu Family System

 

(1) A Joint Hindu Family is not a juristic person. It cannot sue or be sued.

(2) The karta may become autocrat or dictator. Due to his wrong decisions all the members of Joint family may suffer. He may misuse the family property and may incur expenditure for his personal pleasure by drinking, gambling etc.

(3) The members of Joint Hindu Family may lose their individuality. They have to obey the karta and they have no place in decision making.

(4) While some work hard, some may enjoy benefits due to their seniority.

(5) Disputes arise among women in the joint family and create nuisance and make the family a hell.

(6) A few Joint Hindu families which have huge property and influence may commit atrocities through their autocratic doings in the village.

Hindu Undivided Family

Hindu Undivided Family (HUF)

The Joint Hindu Family Business or the Hindu Undivided Family (HUF) is a unique type of business entity. It is governed and dictated by the Hindu Law, which is one of the several religious laws prevalent in India.

So who all are members of such an organization.  Well, any person born into the family (boy or girl) up to the next coming three generations is a part of the HUF. These members are the co-parceners. The head of such a Joint Family Business is the eldest member of the family the “Karta”. He is the main person responsible for the business and the finance..

 

Features of a HUF

·         Formation: To begin a Hindu Undivided Family there must be a minimum of two related family members. There must be some assets, business or ancestral property that they have inherited or will eventually inherit. The formation of a HUF does not require any documentation and admission of new members is by birth.

·         Liability: The liability of all the various co-parceners is only up to their share of the property or business. So they have limited liability. But the Karta being the head of the HUF has unlimited liability.

·         Control: The entire control of the entity lies with the Karta. He may choose to confer with the co-parceners about various decisions, but his decision can be independent. is actions will be final and also legally binding.

·         Continuity: The HUF can be continued perpetually. At the death of the Karta, the next eldest member will become the Karta. However, keep in mind a Hindu Undivided Family can be dissolved if all members mutually agree.

·         Minority: As we saw earlier the members are eligible to be co-parceners by the virtue of their birth into the family. So in this case, even minor members will be a part of the HUF. But they will enjoy only the benefits of the organisation.

Advantages of the HUF

·         A Hindu Undivided family is comprised of family members running a business. Like any other organisation, there is scope for disagreements and conflicts. But since the Karta has absolute power and takes all decisions by himself, it will lead to effective management.

·         Just like a company, the existence of a HUF is perpetual. The death or retirement of one member of even the Karta will not affect it, and it will continue on.

·         Since the co-parceners do not have any effective control over the managment of the HUF, and all power lies with the Karta, the liability of the members has also been limited to only their share of the property This keeps the balance between power and responsibility.

·         Also since all members of the HUF are relatives and members of the same family, there is a sense of loyalty and cooperation. The trust among members is also there and leads to overall cooperation.

Disadvantages of the HUF

·         No outside members other than family members can be introduced to the HUF. This makes it very difficult to get additional capital from the market. With limited capital, the chances of expansion are very low. It limits the scope of the business.

·         While the Karta has all the power he also has the burden of unlimited liability. This may make him overly cautious and timid in his business dealings. In turn, the business could suffer. Another factor is that he may even be held responsible for the actions of other members.

·         Also, the absolute dominance of Karta's overall business and financial decisions make cause conflict among the HUF. His decisions and business acumen may be questioned by other members, and cause issues within the HUF.

·         Another issue may be that Karta may not be the most qualified person to lead the business. The position is given to the senior-most family member, whether he is the most qualified or not is not taken into consideration.