PROJECT ON
“Mitakshara Joint Family System”
SUBMITTED TO - Prof. Pooja Bijjargi
SUBMITTED BY – Vivekanand Jha
ID NO. – 27
[LLB 2nd Year – 2022- 2023]
KLE COLLEGE OF LAW,
NAVI MUMBAI
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Contents
TITLE: -.............................................................................................................................................................. 3
ABSTRACT: - .................................................................................................................................................... 3
KEYWORDS: -................................................................................................................................................... 3
INTRODUCTION: - .......................................................................................................................................... 3
JOINT FAMILY:- .............................................................................................................................................. 4
KARTA:- ............................................................................................................................................................ 4
COPARCENARY:- ............................................................................................................................................ 5
SCHOOLS IN JOINT FAMILY:- .................................................................................................................... 6
❖ THE MITAKSHARA SCHOOL.................................................................................................... 6
❖ THE DAYABHAGA SCHOOL ..................................................................................................... 6
SUB DIVISION OF MITAKSHARA SCHOOL:- ........................................................................................... 7
BANARAS HINDU SCHOOL ...................................................................................................................... 7
MITHILA LAW SCHOOL ........................................................................................................................... 7
MAHARASHTRA OR BOMBAY LAW SCHOOL .................................................................................... 7
MADRAS LAW SCHOOL ............................................................................................................................ 7
MITAKSHARA COPARCENARY:- ............................................................................................................... 8
CONCLUSION: ............................................................................................................................................... 11
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TITLE: -
Mitakshara Joint Family System
ABSTRACT: -
Joint family is a fundamental aspect of Hindu Law in which the concept of joint family is where
their common ancestor and his male lineal descendants along with other members such as wives,
daughters, unmarried persons who stay together under one roof sharing everything in common. In
both the school i.e. Mitakshara and Dayabhaga. The concept of joint family property is the area
that makes each of them different from one other. For every Hindu there will be no escape from
the Joint Family, maybe in one generation or other the Hindu will come into the existence of the
Joint Family automatically. Therefore it is mentioned under the Hindu Laws that there is a
presumption that each family will be considered as a Joint Family.
KEYWORDS: -
Karta, Hindu Law, Joint Family Property, Mitakshara, Dayabhaga, Coparcenary, Ancestor,
INTRODUCTION: -
A Hindu Joint Family is an extended family arrangement that has enormous legal importance in
India. The underlying importance of a joint family is that it checks its origin back to one common
ancestor. Moreover, with the births and deaths of members, joint families can continue for
eternity. Hence, it is important to understand that though a single familial unit, a Joint Hindu
Family is not a legal person. Its legal existence is only in the eyes of the taxation department.
Moreover, the definition of a Hindu Family is highly flexible. The codified law and uncodified
law are two types of Modern Hindu Law. Codified law administers each Hindu. The concepts of
schools of Hindu Law do now no longer exist in codified law, however, it exists in uncodified
Hindu Law. Vedas and Smritis had been the forms of sources in which, many pupils all-round
India, wrote the commentaries which shaped the idea for schools of Hindu Law.
.
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JOINT FAMILY:-
Before beginning with the study firstly we will understand the layman’s language what is Joint
Family. According to the Oxford dictionary, Joint Family means an extended family consisting
of two or more generations and their spouses living together as a single household. So similarly
the Hindu Joint Family is the composition of a common ancestor along with his lineal male
descendants and their wives, daughters, etc. So for the existence of a joint family, there must be
a common ancestor but it doesn’t mean that for the continuance of a Joint Family the common
ancestor must require, by this it means that whenever a common ancestor dies there is always an
addition to the lower link of the Family. So once an upper link is removed it doesn’t mean that
the Joint Family will end. This concept is followed under both Mitakshara and Dayabhaga but it
is an area where it makes distinguish between each of them. In most parts of India, the Mitakshara
concept of Joint Family is followed but in West Bengal, Assam, and other parts the Dayabhaga
concept of Joint Family is followed by the people.
It was observed that Hindu Joint Family is considered a unit and is headed by a Person called
KARTA.
KARTA:-
Karta is a person who acquires a main position in the joint family property. He is denoted a
manager, and occupier of the family. The position of Karta is known as Sui Generic means he
holds a unique position in the Joint family property. There can be more than one Karta in the Joint
Family. The Karta can be the Senior most male member of the family. His main duty is to represent
his family members or act on behalf of them. He is a person on whom all the family members are
dependent just they hold a fiduciary relationship between them and they always want a person to
manage and look after the wellbeing of the family without any issues. So the Karta will look after
the females, and minors in the joint family and also give them maintenance. If Karta fails to give
maintenance then he can be sued for the maintenance as well as the arrears of the maintenance.
He is responsible to give maintenance to unmarried daughters in the Joint family along with the
debts if the family is having at any point in time. Thus all this will be the liability of a Karta to
maintain the Joint Family member as well the business carried on.
The following persons can be Karta in the Joint Family:
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➢ Senior Most Male Member: It is observed in Shreeama v. Krishavenanama1 that the Senior
male can be Karta without the agreement or consent of the coparceners and he holds the
Kartaship.
➢ Junior Male Member: it is observed in Narendra Kumar v. Commissioner of Income Tax2
that Junior Male can be Karta by understanding or agreement among the coparceners. In
the case of M/s Nopany Investments (P) Ltd. V. Santokh Singh3 it was held that Junior
Karta will not the capacity to file a suit.
➢ Female Member: It was observed in Pandurang v. Pandurang4 that the females can be
Karta in the absence of the male adult member.
COPARCENARY:-
Coparcenary is a term that is generally used in matters related to the Hindu succession law.
Coparcener is a term used for a person who assumes a legal right in his parental property by birth
only. To understand this in a better way, we need to first understand the term Hindu Undivided
Family (HUF). In the eyes of the law, a HUF is a group of family people, who are the lineal
descendants of a common ancestor. This group includes the eldest member and three generations
of a family. Moreover, all these members are known as coparceners. According to the law, all
coparceners get a legal right over the coparcenary property by birth. But their share in the property
keeps on changing with new births and deaths in the family. This law apart from Hindus controle
people from other religious backgrounds like Jainism, Sikhism, and Buddhism. It is essential to
note here that coparcenary applies to both ancestral and self-acquired property.
Coparcenary idea under Hindu Law was mainly by the male member of the family were just
children, grandsons, and great-grandsons sons who have a right by birth, who has an interest in the
coparcenary property. No female of a Mitakshara coparcenary could be a coparcener but she will
always be a part of the Joint Family. So under Mitakshara a son, son’s son, son’s son, can be a
coparcenary i.e. father and his three lineal male descendants can be a coparcener.
1
AIR 1957 AP 434
2
AIR 1976 SC 1953
3
AIR 2008 SC 678
4
AIR 1847 Nag. 178
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SCHOOLS IN JOINT FAMILY:-
Schools of thought refer to the divided opinions on a subject matter. Thus, schools of thought on
Hindu law refer back to the various and divided opinions on the policies and principles of Hindu
Law. Unlike statutes, they may be now no longer codified. They do now no longer have the force
of law. However, they affect the minds of the legislature or lawmakers. Schools of Hindu law are
commentaries and the digestives of the smritis. These schools have widened the scope of Hindu
law and explicitly contributed to its development.
The ancient Schools of Hindu laws are of two types. These were in existence even prior to the
codification of Hindu law with the Hindu Succession Act, of 1956
❖ Mitakshara
❖ Dayabhaga
❖ THE MITAKSHARA SCHOOL
In the Mitakshara School, the allocation of parental property is based on the rule of possession by
birth. Moreover, a man can leave his property in his will. The joint family property goes to the
group known as Coparceners. They are the people who belong to the next three generations.
Hence, the joint family property by partition can be, at any time, converted into a separate property.
Therefore In Mitakshara school Joint Family Property son has a right over the property from birth,
and even an illegitimate son or a widowed daughter has a right over the property of their father’s
Joint Family Property. Another feature is the right to Maintenance and right of survivorship which
will be given to the unmarried daughters and other members respectively in the Joint Family.
Under Mitakshara only Joint Family property will be acquired by the coparcenary by the concept
of succession and survivorship.
❖ THE DAYABHAGA SCHOOL
In the Dayabhaga Scheme, the allocation of property is extremely simple. If a man dies intestate,
his sons get a proper part of his property. If he has a share in the common property with his brothers
then the property (a share equal to his own) of the brothers will be separate.
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SUB DIVISION OF MITAKSHARA SCHOOL:-
The Mitakshara school is subdivided into four minor schools; these differ between themselves in
some matters of detail, relating particularly to adoption and inheritance. All these schools
acknowledge the supreme authority of Mitakshara, but they give preference to certain treatises and
to commentaries that control certain passages of Mitakshara. This accounts for the differences
between those schools.
❖ Banaras Hindu law school
❖ Mithila law school
❖ Maharashtra law school
❖ Dravida or madras law school
BANARAS HINDU SCHOOL
This law school comes under the authority of the Mitakshara law school and covers Northern India
including Orissa. Viramitrodaya Nirnyasindhu vivada are some of its major commentaries. The
Benares School is sometimes called the most orthodox of the different schools of Hindu law.
MITHILA LAW SCHOOL
This law school exercises its authority in the territorial parts of tirhoot and north Bihar. The
principles of the law school prevail in the north. The major commentaries of this school are
Vivadaratnakar, Vivadachintamani, and smritsara. The Kalpataru by Lakshmidhara is a work that
is freely cited by the exponents of the Mithila School.
MAHARASHTRA OR BOMBAY LAW SCHOOL
The Maharashtra law school has the authority to exercise its jurisdiction over the territorial parts
including Gujarat Karana and the parts where there is the Marathi language is proficiently spoken.
The main authorities of these schools are Vyavhara Mayukha, Virmitrodaya, etc.
MADRAS LAW SCHOOL
This law school tends to cover the whole southern part of India. It also exercises its authority under
Mitakshara law school. The Smriti Chandrika of Devanna Bhatta, who flourished at the close of
the twelfth century has all along had a commanding influence in South India. It is an exposition
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on the law of inheritance and was considered by Colebrooke to be a work of uncommon excellence,
equal, if not superior, to Parashara Madhaviya which also is a leading authority in the South. The
main authorities of this school are Smriti Chandrika, Vaijayanti, etc.
MITAKSHARA COPARCENARY:-
Mitakshara Coparcenary is a smaller body in the Mitakshara Joint Family system. It is based on
the birthright of the sons over the ancestral property. Coparceners only shall have the right over
the property. Which consists of 4 male generations starting from a common male ancestor ie.
Father → Son →Grandson → Great-Grandson.
The incidents of coparceners under Mitakshara law are:
▪ First, the lineal male descendants of a person up to 3rd generation, acquire on birth
ownership in the ancestral properties of such person.
▪ Secondly, 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, as a result of such co-ownership the possession and enjoyment of properties are
common.
▪ Fifthly, no alienation of the property is possible unless it be necessary, without the
concurrence of the coparceners
The following are the characteristic features of the Mitakshara coparcenary.
1) Unity of Ownership: The essential feature of a Mitakshara coparcenary property is unity
of ownership, i.e., the ownership of property is not vested in a single coparcener. It is vested
in whole body of coparcenary. According to the true notion of an undivided family
governed by the Mitakshara law, no individual member of that family whilst it remains
undivided, can predicate, of the joint and undivided property, that he has a definite share.
2) Indeterminability of Shares: The interest of a coparcener in the coparcenary property is
a fluctuating interest which is liable to diminish with the birth and bound in increase with
the death of any coparcener in the family. So long the family remains united; no individual
coparcener can predicate that he has a definite share in the property of the family
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3) Community of Interest: There is community of interest in the coparcenary property. The
moment a person is born in the family, he acquires an interest in the coparcenary property
in the sense that he has a right of common enjoyment and common use of all the properties
because as soon as he is born as a son, he assumes the membership of the community. It
also signifies that no coparcener is entitled to any special interest in the coparcenary
property, nor is he entitled to exclusive possession of any part of the property.
4) Exclusion of Females: In Mitakshara coparcenary no female can be its member, though
they are members of a joint family. Even the wife who is entitled to maintenance enjoys
only the right to maintenance but she can never become a coparcener. Thus a female does
not have the right to demand partition. Since she is not a coparcener, she cannot become
the Karta of the family. Alienation of the property of the joint family by her will not be
binding on her sons and daughters. The alienation of her own share is not binding upon
herself.
5) Devolution by Survivorship: One of the distinctive features of coparcenary is that the
coparcenary interest of a coparcener in coparcenary property on his death does not devolve
on his heirs by succession but on the other hand it passes by survivorship to the other
coparceners. Thus right by birth and right of survivorhsip are necessary incidents of
community of interest and unity of ownership, which signify joint possession, not an
exclusive possession.
6) Right of Maintenance: All the members of the coparcenary are entitled to maintenance
by birth out of the joint family property. They continue to enjoy this right so long as the
coparcenary subsists. Where any member fails to get any share on the coparcenary property
even after partition he retains the right of maintenance. Some special provisions have to be
made for them at the time of partition. Female members and other male members who do
not get a share in the partition such as unmarried daughters, idiots, or lunatics, are entitled
to maintenance out of the joint family property. Unmarried daughters have a right to be
married out of joint family funds.
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In Mitakshara school there’s a concept of Coparcenary within the Coparcenary i.e. separate
coparcenary can be existed within a coparcenary. Suppose a coparcener consists of RAM and three
sons MOHAN, ASHOK, and VIREN.
MOHAN has two sons MOHAN SON1, and MOHAN SON2. And ASHOK has three sons
ASHOK SON1, ASHOK SON2, ASHOK SON3. Suppose RAM and three sons MOHAN,
ASHOK, and VIREN acquire the separate property then when MOHAN dies, his separate property
can be acquired by his sons MOHAN SON1, MOHAN SON2 and they can form a separate
coparcenary themselves. This concept is called Coparcenary within the Coparcenary.
RAM
MOHAN ASHOK VIREN
MOHAN'S SON 1 ASHOK'S SON 1
MOHAN'S SON 2 ASHOK'S SON 2
ASHOK'S SON 3
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CONCLUSION:
Hindu Law is the most ancient law in the world. Originally Hindu Law was created to satisfy every
need and welfare of the people. The assets of the idea for Hindu Law are Shruti (phrases of God),
Smriti(text), customs (vintage practices), commentaries, and digest.
Coparcenary idea under Hindu Law was mainly by the male member of the family where just
children, grandsons and great-grandsons son who have a right by birth, who has an interest in the
coparcenary property. No female of a Mitakshara coparcenary could be a coparcener but she will
always be a part of the Joint Family. So under Mitakshara a son, son’s son, son’s son’s son can a
coparcenary i.e. father and his three lineal male descendants can be a coparcener. There is no
concept of Joint Family under the Dayabhaga School as compared to the Mitakshara. There is no
coparcenary consisting of Father, son, son’s son, son’s son’s son. The existence of the Dayabhaga
coparcenary comes only after the death of the father, that the son will inherit the property of him
and constitute a coparcenary.
It can be concluded that the Mitakshara system is Conservative. It provides good security in
difficult times as a member can rely on the joint family. However, sometimes a member can
become a parasite.
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