Introduction:-

Joint Hindu Family Business is a different type of organization, which is found only in
India. As the name suggests, it is type of organization in which all the members of Hindu
Undivided Family manage and control the business with the direction of head of the
family. It is not a Partnership. It is just like a Partnership where only the members of the
family can take part. It is not even sole trading concern, but it is enlargement of sole
trading concern in which continuity is guaranteed. The business is carried on from
generation to generation. It comes into existence by the operation of Hindu law. It is the
result of Hindu Undivided Family system followed in India. Wherever, there is Hindu
Undivided Family, there is the scope of Joint Hindu Family Business. The Joint Hindu
Family Firm is the next non-corporate, group ownership form of family business
operative in India. It is governed by the Hindu Law. In the Hindu Law, there are two
schools: (i) Dayabhaga, which is applicable in Bengal and Assam; and (ii) Mitakshara,
which is applicable in the rest of India. The origin of the Joint Hindu Family firm is to be
found in the principles of inheritance under the second school i.e., Mitakshara school of
Hindu Law. Under this school, the property of a Joint Hindu Family is inherited by a
Hindu from his father, grandfather, and great grandfather is called ancestral property.

Thus, three successive generations in the male line (son, grandson, and great grandson)
can simultaneously inherit the ancestral property. This interest in inheritance is called
coparcenary interest and the members of the Joint Hindu Family. Hindu Undivided family
(HUF) Firm are called coparceners and the senior most as karta. In this group of
coparceners, however, the female members of the Joint Hindu Family are not included.

It should be carefully noted here that with the operation of the Hindu Succession Act,
1956, the female relative of a deceased coparcener is eligible to receive only some share
out of the coparcenary interests of such a Coparcener.

Three generations next to the holder in unbroken male line constitute a co-parcenary, and
property inherited by a Hindu from his father, fathers father and fathers grandfather is
regarded as ancestral A son, grandson and great grandson become joint owners of the
property by reason of their birth in the family. The property is managed and held by the
senior male member or the father as the Head of the Family, technically known as
Karta. In Hindu law, a family business is taken as a part and parcel of the heritable
property, and therefore, the family business becomes the subject matter of co-parcenary
interest. The rights and liabilities of co-parceners are determined by the general rules of
the Hindu Law. It should be noted that joint family firm with the joint ownership of the
inherited business is created by the operation of law and does not arise out of contract
between the coparceners.

A joint family property cannot be the subject matter of Will except to the extent of
testators share on deemed partition on the date of his death. A Will should ordinarily be
in respect of self-acquired property. If a Will is made of entire joint family property, such
a Will may well not be valid.

Before the Hindu Succession Act came into force with effect from June 1956, whatever is
received by succession or by a Will from the parent was treated as ancestral property in
the hands of the sons. In fact, even salary and professional income arising out of
education met from the funds of Hindu joint family were treated as joint family property
prior to Hindu Gains of Learning Act, 1930. It is now treated as individual income.

As a result of the Hindu Succession Act, individual property would have the same
character in the hands of the legal heirs, whether by Will or by intestate succession, if the
death of the holder occurred on or after June 1956.

A Hindu Undivided Family (HUF) would continue as joint family even after the Hindu
Succession Act, but female heirs of deceased coparceners will have a right over their
fathers share on the basis of deemed partition. Under the Hindu Succession Act, such
part will no longer continue as that of Hindu Undivided Family, when parted with, but the
remaining part will continue in the same family, unless complete partition is effected.

The right of the female heirs has undergone changes by State enactments and now by the
Hindu Succession (Amendment) Act, 2005, with effect from September 5, 2005, giving
rights to the daughters equal to sons, but even in such a case till partition takes place,
HUF will deem to continue. But on settlement of rights of daughters, the male
coparceners alone can continue in joint family. Daughters will take their share as their
individual property.

A Coparcenary

Within the joint family there is a narrower body called the Coparcenory. This includes the
eldest male member + 3 generations. For eg : Son Father Grandfather Great
Grandfather. This special group of people are called coparcenors and have a definitive
right in ancestral property right since the moment of their conception. Earlier only a
Son/Sons son/Sons sons son were coparcenors now daughters are equally coparcenors
after 2005. They can get their share culled out by filing a suit for partition at any time. A
coparcenors interest is not fixed it fluctuates by birth and deaths in the family.

Ancestral & Self Acquired properties.

A property is ancestral when acquired through inheritance from ancestors, this property is
always shared by members of a coparcenary equally. On the other hand property is self
acquired if it is earned by own efforts/learning or other human endeavour. In the latter
the person acquiring is the sole owner and nobody exercises any right on the same during
his lifetime.

Partition

Any coparcenor can at anytime seek a partition of his share. The continuing coparcenors
can seek to buy out the share of coparcenor expressing his intention to move out by
exercising the right of pre-emption.

Can a Coparcenor sell/gift/dispose off his right in ancestral/coparcenory property ?

Yes a coparcenor can sell/gift away his interest to another coparcenor or even a third
party. However a third parties right to take possession of property alongwith rest of
coparcenory is limited. The family can buy the third party out in order to maintain
integrity of the house and to prevent a stranger from getting in with the family. This right
is given by Transfer of Property Act as well as the Partition Act.

Can a Karta dispose of coparcenory property without consent of the family/coparcenory ?

Yes in cases of legal necessity/benefit of estate the karta can alienate joint family
property. However such an alienation can be challenged by the continuing coparcenors as
not being for legal necessity or benefit of estate within 12 years of knowledge of sale/gift.

As to how joint family can originate, the joint effort of the members of a Hindu joint
family in running a common business or activity may lead to the inference of a Hindu
joint family. Joint family may be created or its property augmented by individual property
thrown into common hotchpot. Any gift or a Will may also create or augment the property
of joint family, if the donor or testator, as the case may be, expresses clearly that the
donee/ beneficiary will not have absolute right over the property but will receive the same
as joint family property as the karta of such joint family.

A daughter, who is now conferred property rights in a joint family equal to that of the son
can exercise her right to ask for a partition and get her share. She gets her share even if
partition is occasioned by other members.

Joint Hindu Family Business, though is an enlarged form of sole trading concern but it
enjoys stability. It is given due recognition by the Income Tax Act, 1961, and by the Joint
Hindu Succession Act, 1956, but it lacks legal status. Status of Joint Hindu Family firm
and its members is one and the same.

Membership: The membership of Joint Hindu Family Business is restricted only to

members of the family. Members of the family are called 'co-parceners'. Before 1956,
female members of the family were not having equal rights with male members but the
Hindu Succession Act, 1956, has its provisions for female members also. The business is
controlled by head of the family called as 'Karta'. Karta and co-parceners are usually male
members.

Management: The management of Joint Hindu Family Business is in the hands of the
head of the family who is known as "Manager or Karta". The Karta has to carry on the
business with care, he has to protect the interest of the members, he cannot make secret
profits. Karta has full authority and control over financial aspects of business. He is called
"Custodian of Property". He is fully responsible for business risk, his liability is
unlimited. The liability of the co-parceners is limited. The co-parceners have to help
Karta in doing the business. Any member is free to get separate from Joint Hindu Family
Business. Generally, separation from the Joint Hindu Family is due to the disagreement
with the Karta's policies and programs.

Types of Joint Hindu Family Business: There are two types of Joint Hindu Family
Businesses. They are as follows:-
(1) Mitakshara: Only male members born in the family are eligible to get equal share in
the property of the family. This system exists in India except West Bengal and Assam.

(2) Dayabhagha: Under this both male and female members get the share in the property
of family. This form exists in West Bengal and Assam. From June 22, 1994, the female
members also have the co-parcenercy right in the state of Maharashtra.

The existence of the Joint Hindu Family firm does not come to an end by the death,
insanity, or bankruptcy of any coparcener.
2. Management:
The organisation, management, and control of the business is vested in the karta of the
family. This results in the unity of command and non-interference in the conduct of
business. This non-interference makes quick decisions, prompt action maintenance of
secrecy, etc., possible.
3. Liability:
Except the Karta, all other members liabilities are limited to the extent of their share in
the ancestral property.
4. Membership:
Unlike partnership, there is no such limit to the membership of the Joint Hindu Family
Firm. However, it is restricted to the three successive generations in the male line.
5. Credit worthiness:
Compared to the sole proprietor, the credit worthiness of the family business is definitely
more.
Limitations of Joint Hindu Family Firm:1. Disproportionate relationship between work
and reward:
The relationship between the works and reward is not positively proportionate. The profit
of the family business is divided among all the members, whereas the Karta is the only
earner.
2. Limitations of management:
Like sole proprietor, the Karta may not be possessing all the management skills required
in the fields of production or purchasing, marketing, personnel and industrial relations,
financing, and other enterprise functions. These limitations of management reflect in the
efficiency and effectiveness of business operations.
3. Short life of business:
The life of the family business is shortened if family quarrels take precedence over
business interests.
Suitability of Joint Hindu Family Firm:
(i) Where investment required is moderate
(ii) Where application of personal skill and judgement is necessary like services.
(iii) Where avoidance of risky business due to unlimited liability of business is given
precedence.
(iv) Normally found in small manufacturing, trading and services.

Advantages of Joint Hindu Family Business are:

1. Easy formation
2. Quick decisions and prompt action
3. Flexibility in operation
4. Business Secrecy
5. Continuity of business
6. Minimum Government regulations
7. Limited liability of co-parceners
1. Easy formation: -Formation of Joint Hindu family is very easy. Because it does not
require any legal formalities to form. It comes into existence under the Hindu succession
Act 1956.

2. Quick decisions and prompt action: -The Karta is the sole manager of the business and
head of the family. He need not consult any one before taking any decisions. Therefore he
can take quick decisions and prompt actions

3. Flexibility in operation: -The management is in the hands of the Karta. He takes the
decisions according to the changing circumstances. He can expand or contracts his
business at his convenience. He enjoys maximum flexibility in operation.

4. Business Secrecy: -A joint Hindu family business can maintain business secrecy.
Because they need not have to publish theres any account to any outsider of the family.

5. Continuity of business: -Joint Hindu family business does not dissolve due to death of
Karta. Because a minor members that is a co-parceners can become a Karta after the
death of the Head of the family

6. Minimum Government regulations: - Though the Hindu undivided Family is the result
of Hindu Law, there is least Government control over Hindu undivided Family because
the business are conducted by the family members itself so they no need to publish any
accounts and reports to any outsiders.

7. Limited liability of co-parceners: - The Co-parceners enjoy limited liability. The

liability of the co-parceners is limited to the extent of the shares in the family business.
However, the liability of the Karta is unlimited.
 Disadvantages of Joint Hindu Family Business are as follows:

1. Limited Capital
2. Unlimited liability of Karta
3. Lack of stability
4. Less motivation
5. Limited Growth and Expansion
6. No entry for non family members
7. No Legal Status

1. Limited Capital: -This type of business does suffer from the limitation of capital. This is
because the business has to depend upon the savings of the family. Again, limited amount
of borrowings is possible from friends, banks and others.

2. Unlimited liability of Karta: -The liability of the karta is unlimited but the liability of
co-parceners is limited. The Karta is liable to pay the dues even from his personnel
property. Unlimited liability makes him more cautions and he may not take any risk.

3. Lack of stability: -The continuity and stability of the firm depends upon good relations
among the family members but in practice it is not possible. Therefore there may be
results in the discontinuation of the firm. However in many case there is continuity of
business.
4. Less motivation: -All the members of the family are entitled to equal share whether
they put in work or not. There is no relation between efforts and rewards. Hence, there is
less motivation to put in more effort.

5. Limited Growth and Expansion: -The investment of the joint Hindu family business is
limited. Growth and expands is possible only when there is large investment. But the
liability of the Karta is unlimited. Hence, there is less scope for Growth and expansion.

6. No entry for non family members: -Only family members can get entry into the
business. Outsiders are not allowed to interfere in the family business. So there is less
scope for increasing the capital of family members.

7. No Legal Status: -Like Sole trading concern, the Joint Hindu family business lacks
legal status. The registration of this type of business is not compulsory. The members and
the firm do not have separate entity.
Types of partition
There are 2 types of partition which are described under Hindu Law they are as follows
1. Total Partition
2. Partial Partition
In the total partition the whole property of a Hindu Undivided Family undergoes a total
division of property & the same will be divided in between all the coparceners and family
cease to exist as a Hindu Undivided Family, whereas the partial partition can also be
made when some of the members go out on partition & other members continue as being
a member of the family & in this case the remaining property will belong to the undivided
family.
Who has the right to claim partition:-
In any family where a dispute arises, which results in the partition of the family business,
any coparcener of the family has the right to claim a partition in the family business, and
it is not mandatory that other coparceners should agree to the partition which was sought
by one of the coparceners. Even minors can also claim for a partition in the family
business & the claim can be made through their guardian until the minor reaches the age
of majority.
The partition in a family business also happens on the death of the coparcener, but it
cannot bring an automatic partition and on such death the other living members would
continue to remain as joint. But in the Hindu Succession Act, there is a provision which
says that there is a deemed partition for a limited purpose of determining the share of the
deceased coparcener for the purpose of succession mentioned in the act of 1956, HINDU
SUCCESSION ACT. The other clause which also arise here is the ownership of the
property received by a member on a total partition of Hindu undivided family , here the
property which will be received by the male member of the family on the total property
will retain its character as a joint family property and if he is single then it will be Hindu
undivided family property after the marriage and a Sole member has a right to constitute a
Hindu undivided family on marriage . Any member can demand for the partition in the
family business by entering into the DEED OF PARTITION, here parties are considered
purely as a contractual in nature, but the parties have to file a suit in a Civil Court for a
decree of partition, and after the successful registration it can obtain the loans in future as
the financial institutions would accompany you more comfortably & accepting to the
property as a security if there a court decree opposed to the mere contract in between the
family. One thing to be kept in mind always is validity of partition between the widowed
mother and sole surviving coparcener son here a mother or a wife has no right to claim
for a partition but if the partition is affected then a mother or a wife will get an equal
share as of the son, there is also a clause where a property is capable of physical division
when the partition was made by the physical division only, if the property of Hindu
undivided family does not admit the physical division. In general, the partition can be
made orally also, and there is no provision in law that the said partition must be
evidenced by a written agreement only, although the partition of the immovable property
of the Hindu undivided family can be made through an oral agreement as well.
 A business cannot be partitioned by metes and bounds in the case of partition for
conversion of the family business into partnership ; it may, however, noted that a partition
can be effected orally, and the claim will not be upheld, and the income generated from
the business will be held assessable in the hands of Hindu undivided family itself. The
validity of penalty on Hindu undivided family after a total partition gives the mandate to
an assessing officer to levy penalty on Hindu undivided family provided under Section-
171(8) of Income tax act.
The procedure by which the partition gets its recognition are as follows:-
1. The Hindu undivided family must make a claim to the Assessing officer that the
Hindu undivided family property is subjected to the total partition.
2. Then the Assessing Officer will make an inquiry to the claim.
3. Then the Assessing officer will issue a notice to all the members of Hindu
Undivided Family.
4. If he is satisfied that the claim is correct, then he will record a finding that there
was a Total Partition of the Hindu undivided family, and he will also mention the date
when it took place.

The Supreme Court in Appasaheb Peerappa Chandgade vs Devendra Peerappa

Chandgade has ruled on the presumption regarding joint family property under the Hindu
law. The Supreme Court after considering various precedents on the subject, held that
there is no presumption of joint family property, and whoever alleges the existence of the
same must prove it through evidence. The Supreme Court further added that if it is shown
that the properties were acquired out of the family nucleus, the initial burden is
discharged by the person who claims joint Hindu family, and the burden shifts to the party
alleging self-acquisition to establish affirmatively that the property was acquired without
the aid of the joint family property by cogent and necessary evidence. The relevant
extracts from the judgment are reproduced hereinbelow;

We have gone through the records and heard learned Counsel for the parties at length. So
far the legal proposition is concerned, there is no gain saying that whenever a suit for
partition and determination of share and possession thereof is filed, then the initial burden
is on the plaintiff to show that the entire property was a joint Hindu family property and
after initial discharge of the burden, it shifts on the defendants to show that the property
claimed by them was not purchased out of the joint family nucleus and it was purchased
independent of them. This settled proposition emerges from various decisions of this
Court right from 1954 onwards.

In the case of Srinivas Krishnarao Kango v. Narayan Devli Kango and Ors. , their
Lordships held that proof of the existence of a joint family does not lead to the
presumption that property held by any member of the family is joint, and the burden rests
upon anyone asserting that any item of property was joint to establish the fact. But where
it is established that the family possessed some joint property which from its nature and
relative value may have formed the nucleus from which the property in question may
have been acquired, the burden shifts to the party alleging self-acquisition to establish
affirmatively that the property was acquired without the aid of the joint family property.
Therefore, so far as the proposition of law is concerned, the initial burden is on the person
who claims that it was joint family property but after initial discharge of the burden, it
shifts to the party who claims that the property has been purchased by him through his
own source and not from the joint family nucleus. Same proposition has been followed in
the case of Mst. Rukhmabai v. Lala Laxminarayan and Ors. wherein it was observed as
follows:
There is a presumption in Hindu Law that a family is joint. There can be a division in
status among the members of a joint Hindu family by definement of shares which is
technically called "division of status", or an actual division among them by allotment of
specific property to each one of them which is described as "division by metes and
bounds". A member need not receive any share in the joint estate but may renounce his
interest therein; his renunciation merely extinguishes his interest in the estate but does not
affect that status of the remaining members vis-a-vis the family property. A division in
status can be effected by an unambiguous declaration to become divided from the others
and that intention can be expressed by any process. Though prima facie a document
clearly expressing the intention to divide brings about a division in status, it is open to a
party to prove that the said document was a sham or a nominal one not intended to be
acted upon but was conceived and executed for an ulterior purpose. But there is no
presumption that any property, whether moveable or immoveable, held by a member of a
joint Hindu family, is joint family property. The burden lies upon the person who asserts
that a particular property is joint family property to establish that fact. But if he proves
that there was sufficient joint family nucleus from and out of which the said property
could have been acquired, the burden shifts to the member of the family setting up the
claim that it is his personal property to establish that the said property has been acquired
without any assistance from the joint family property.

In the case of Srinivas Krishnarao Kango v. Narayan Devli Kango and Ors. , their
Lordships held that proof of the existence of a joint family does not lead to the
presumption that property held by any member of the family is joint, and the burden rests
upon anyone asserting that any item of property was joint to establish the fact. But where
it is established that the family possessed some joint property which from its nature and
relative value may have formed the nucleus from which the property in question may
have been acquired, the burden shifts to the party alleging self-acquisition to establish
affirmatively that the property was acquired without the aid of the joint family property.
Therefore, so far as the proposition of law is concerned, the initial burden is on the person
who claims that it was joint family property but after initial discharge of the burden, it
shifts to the party who claims that the property has been purchased by him through his
own source and not from the joint family nucleus. Same proposition has been followed in
the case of Mst. Rukhmabai v. Lala Laxminarayan and Ors. wherein it was observed as
follows:
There is a presumption in Hindu Law that a family is joint. There can be a division in
status among the members of a joint Hindu family by definement of shares which is
technically called "division of status", or an actual division among them by allotment of
specific property to each one of them which is described as "division by metes and
bounds". A member need not receive any share in the joint estate but may renounce his
interest therein; his renunciation merely extinguishes his interest in the estate but does not
affect that status of the remaining members vis-a-vis the family property. A division in
status can be effected by an unambiguous declaration to become divided from the others
and that intention can be expressed by any process. Though prima facie a document
clearly expressing the intention to divide brings about a division in status, it is open to a
party to prove that the said document was a sham or a nominal one not intended to be
acted upon but was conceived and executed for an ulterior purpose. But there is no
presumption that any property, whether moveable or immoveable, held by a member of a
joint Hindu family, is joint family property. The burden lies upon the person who asserts
that a particular property is joint family property to establish that fact. But if he proves
that there was sufficient joint family nucleus from and out of which the said property
could have been acquired, the burden shifts to the member of the family setting up the
claim that it is his personal property to establish that the said property has been acquired
without any assistance from the joint family property.

Similarly, in the case of Achuthan Nair v. Chinnammu Amma and Ors. , their Lordships
held as follows:
Under Hindu law, when a property stands in the name of a member of a joint family, it is
incumbent upon those asserting that it is a joint family property to establish it. When it is
proved or admitted that a family possessed sufficient nucleus with the aid of which the
member might have made the acquisition, the law raises a presumption that it is a joint
family property and the onus is shifted to the individual member to establish that the
property was acquired by him without the aid of the said nucleus. This is a well settled
proposition of law.

Similarly, in the case of Bhagwant P. Sulakhe v. Digambar Gopal Sulakhe and Ors., their
Lordships have held that the character of any joint family property does not change with
the severance of the status of the joint family and a joint family property continues to
retain its joint family character so long as the joint family property is in existence and is
not partitioned amongst the co-sharers. By a unilateral act it is not open to any member of
the joint family to convert any joint family property into his personal property.

8. In the case of Surendra Kumar v. Phoolchand (dead) through LRs and Anr. their
Lordships held as follows:
It is no doubt true that there is no presumption that a family because it is joint possessed
joint property and therefore the person alleging the property to be joint has to establish
that the family was possessed of some property with the income of which the property
could have been acquired. But such a presumption is a presumption of fact which can be
rebutted/ But where it is established or admitted that the family which possessed joint
property which from its nature and relative value may have formed sufficient nucleus
from which the property in question may have been acquired, the presumption arises that
it was the joint property and the burden shifts to the party alleging self-acquisition to
establish affirmatively that the property was acquired without the aid of the joint family.

Therefore, on survey of the aforesaid decisions what emerges is that there is no

presumption of a joint Hindu family but on the evidence if it is established that the
property was joint Hindu family property and the other properties were acquired out of
that nucleus, if the initial burden is discharged by the person who claims joint Hindu
family, then the burden shifts to the party alleging self-acquisition to establish
affirmatively that the property was acquired without the aid of the joint family property
by cogent and necessary evidence.

Khairati Ram And Ors. vs Firm Balak Ram Mehr Chand And Anr. on 21 August, 1959

But when the karta joins a partnership as representing his joint family, it cannot be said
that the whole family becomes a partner. All that can be said is that the assets of
the joint family become liable in case of any losses incurred by the partnership business.
It seems to me that it is only in this restricted sense that the Judges who dealt with the
abovementioned cases have referred to the joint family being capable of becoming a
partner. When the question arises as to who is the real partner and whether the karta is to
be counted as one partner or all members of the joint family are to be considered as
partners, the Judges are unanimous in their view.

Accordingly on the death of one member of such a partnership, the whole partnership is
ipso facto dissolved, and the business will cease unless reconstituted by the mutual
agreement of all those who propose to carry it on. Mulla lays down a similar proposition
in paragraph 234 of his Principles of Hindu Law, 12th edition, and observes that where a
manager joins a partnership on behalf of the joint family, the partnership on behalf of
the joint family, the partnership is dissolved on his death. "The surviving members of the
family cannot claim to continue as partners with the stranger, nor can they institute a suit
for a dissolution of the partnership, their position being no higher than that of sub-
partners. Nor can the stranger partner sue the surviving members as partners for the
manager's share of the loss." Malik C. J. in Ram Kumar Ram Niwas v. Commr. of
another coparcener as 'a sort of sub-partner' who can only Act through the karta who has
joined the partnership on his behalf.
Mahadeodas And Ors. vs Gherulal Parakh And Ors. on 1 April, 1953

In the case no evidence has been adduced to show that any of the other members of
the joint families agreed to join the partnership or did any acts in connection with
thepartnership. In support of the argument that a partnership between the Karta of a
family representing it on the one hand and a member of that family in his individual
capacity is valid, it was urged before their Lordships that the rules of Hindu Law permit
the formation of a partnership between the managing member of a Hindu joint family on
the one hand and a stranger on the other, that the family as a unit does not become a
partner and consequently the objections to the formation of such a partnership due to the
fleeting and changeable nature of a joint Hindu family do not arise; such of its members
as in fact enter into contractual relations with the stranger alone become partners, and
the partnership would be governed by the Indian Partnership Act. Their Lordships could
not find any sound reason to distinguish the case of a stranger from that of a coparcener
who puts into the partnership what is admittedly his separate property held in his
individual capacity and unconnected with the family funds, and decided that it was clear
that if a stranger can enter into partnership with reference to his own propeity with
a joint Hindu family through its Karta, there was no sound reason to withhold such
opportunity from a coparcener in respect of his separate and individual property. When
therefore a Karta of a joint family, has gone into partnership with the Karta of
ajoint family, the partnership will in the absence of evidence showing that other members
of thejoint family did join the partnership, remain a partnership between the two kartas. In
the present case there is no such evidence showing that other members of the joint family
did join the partnership, I hold therefore that the other members of the two families have
not been shown to have come into these partnerships and the partnership for the forward
contracts with Mulchand Gulzarimal and, Baldeosohai Surajmal had only two partners
Mahadeodas Maya and Gherulal Parakh.

M.D.Varadarajan vs G.Sureshkumar on 7 January, 2008

The suit is one for partition. Defendant is the appellant herein. The suit property jointly
belonged to one Rajan and his wife Sulochana. They had no issues. Rajan died in 1991.
Subsequently, Sulochana died intestate in 1993. Hence succession is governed by the
provisions of Hindu Succession Act, 1956. But the point in controversy is as to whether
the estate of the deceased will devolve on the legal heirs as per Section 16 or Section
17 of the Hindu Succession Act. In this regard it is contended by the learned Counsel, Sri
Sadananda Prabhu, appearing for the appellant that at the time Sulochana died in 1993
she is not governed by the marumakkathayam law, since the marumakkathayam law in
the State of Kerala had been repealed by the provisions contained in the Kerala Joint
Hindu Family System (Abolition) Act, 1975. According to him, since the succession
opens in 1993, on the death of Sulochana when she is not governed by the
marumakkathayam law, the estate of the deceased will be devolved on the legal heirs in
terms of Section 17 of the Hindu Succession Act. Per contra it is contended by the
contesting respondents that Section 17 itself gives sufficient indication that whether the
provisions of Section 15 will apply or Section 17 will apply, will have to be decided as on
the date of commencement of the Hindu Succession Act, 1956. As per Section 17 of the
Act, the provisions of Sections 8, 10, 15 and 23 shall have effect in relation to persons
who would have been governed by the provisions of marumakkathayam law, if this Act
had not been passed. In other words, according to them, the application of Section
15 or Section 17 as the case may be, will have to be decided as on the date of
commencement of the Hindu Succession Act. The parties are governed by the
marumakkathayam law at the time of commencement of the provisions of theHindu
Succession Act. There were two provisions governing the succession. While enacting the
law the legislature has taken care to provide two separate provisions indicating the
manner in which the estate will devolve and the determination of the heirs will therefore
be governed by the provisions of Section 15 in the case of marumakkathayi as per Section
17 of the Act. According to them, both Section 15 and Section 17 have come into force.
In the absence of any provision contained in the Joint Hindu Family System (Abolition)
Act expressly amending the provision of Section 17, the continued application of Section
17 is not affected by the Joint Hindu Family System (Abolition) Act, 1975.

Addepalli Venkata Laxmi vs Ayinampudi Narasimha Rao And ... on 22 September,

1993
one Ayinarnpudi Subrahmaniam was the owner of the plaint schedule properties. He died
on December 26, 1943 leaving behind his first and second wives Veeramma and Pari-
purnamma. Subrahmaniam had no issues through his first wife Veeramma. Through
Paripurnamma, he got four children three daughters and a son. At the time of death of
Subrahmaniam, his son was aged about 6 months. His daughters are Addepalli Venkata
Lakshmi, plaintiff in O.S. No. 55 of 1977, Ramaratnam and Hanumayamma.
Venkatalaxmi married to one Subbarao and after her marriage, she was residing at Tenali.
While the matters stood thus, Venkatalaxmi filed the suit O.S. No. 55 of 1977, claiming
that she is entitled to the properties that fell to her share as they were in the enjoyment of
her foster-mother, Veeramma. Those properties comprise the Western portion of the
terraced building in Ramalingeswarapeta and adjacent vacant site, Ac.1-02 cents in
Chinaravur village and a house at Bose Road. Ayinampudi Narasimha Rao who is the
brother of the plaintiff in O.S. No. 55 of 1977, filed the original Suit No. 109 of 1978
stating that his sister's husband, Addepalli Subbarao is the tenant of the house at Bose
Road, Tenali and he is entitled to recover the same, or alternatively he pleaded for
partition of the suit property into four equal shares and for allotment of two such shares to
him. Since the parties to the two suits are common, and also in view of the joint memo
filed by both parties requesting the Court to try the suits jointly, both the suits were tried
together and disposed of by a common Judgment. The learned Subordinate Judge, after
scanning through the evidence on record, found that the family settlement alleged to have
been made by both the parties has not been satisfactorily proved. He also found that the
will under Ex.A-2 dated October 25, 1968 said to have been executed by Inampudi
Veeramma has not been proved, since it was executed unde suspicious circumstances and
the same cannot be relied upon. With regard to the contention that the plaintiff in O.S. No.
109 of 1978 is entitled for recovery of the entire suit property basing on the oral
relinquishment since Veeramma did not acquire any absolute title by adverse possession
to the entire property and as the oral relinquishment set up by the plaintiff was
disbelieved, it is is found that the plaintiff is entitled for partition and separate possession
of his 11/20th share in the suit property. Aggrieved by the findings arrived at by the Court
below, Appeal Suits Nos. 54 of 1981 and 1767 of 1980 have been filed before this Court.
In these appeals, the learned single Judge while agreeing with the conclusions drawn by
the trial Court in disbelieving the version set up by the plaintiff, found that the will put
forward was executed under suspicious circumstances. The learned single Judge has also
found that the family settlement as alleged by both parties is not correct and ultimately
confirmed the judgment and decree made by the trial Court. Aggrieved by the said
finding, these two Letters Patent Appeals are filed. The second contention is that when
two reliefs have been claimed in the suit, the lower Court ought to have directed the party
to choose either one of it. When the suit is filed seeking two alternative reliefs, it is the
duty of the Court to find out whether it has got jurisdiction to try the suit or not and
simply on the basis of the allegations, it cannot throw away the case, particularly when
the alternative relief that has been claimed by the party is within the power of that Court
to grant a decree. Two reliefs have been claimed in the suit, one relief can be granted by
the Court and the other relief can be decided after making full dressed trial and proof. The
contention that the party can choose one of the remedies at the earliest point of time and
since the party did not choose the same, the suit has to be dismissed has no force. The
entire case rests on the family settlement alleged to have been set up by both the parties.
The will that has been set up by the parties under Ex.A-2 has also got a material bearing.
The validity of the will has to be determined on the correctness or otherwise of the
statements that have been made by the attestors. The surrounding circumstances
preceding the execution of the will have to be gone into to arrive at a finding on the
validity of the will executed while disposing of the property in favour of the a particular
party or person. It is to be seen that on the death of Subrahmaniam, his two wives have
become helpless and they are not having any male assistance to look after their family
affairs and properties. Venkatalaxmi, who is the first daughter of Paripurnamma, was
married in December, 1944. Since a male member has joined the family through their first
daughter Venkatalaxmi, it is common in all the Hindu famlies that they will naturally take
the assistance of their first male member In the suit filed by Ayinampudi Narasimha Rao,
who is the only son of Subrahmaniam through Ayinampudi Pari-purnama, the second wife
of late Subrahmaniam, he had asked for partition of his half share, but he was given 11/20
share. To meet the ends of justice or any other relief which is appropriate has to be
granted by the Court. Taking into account the plea set up by the parties, it is competent for
the Court to gram the relief which is not barred by limitation. In this case the question of
limitation does not arise as they are co-owners. So, granting of relief of 11 / 20 share to
the plaintiff in and 1/20 share to the plaintiff is in conformity with the well settled
proposition of law and the provisions of Hindu Sucession Act. With regard to the
devolution of property in case of person who dies intestate, the decree is in conformity
with the settled principles of law and we see. no ground to interfere with the decree and
judgment under appeal.

Bai Kamala vs Occhavlal Chhaganlal And Ors. on 10 April, 1962

This appeal from an order is by the original defendant No. 1, who is the widow of one
Choksiwala Mangaldas Ranchhoddas. The plaintiff claiming to be one of the reversioners
had file a suit against the widow of the deceased Mangaldas and against two other
defendants for a declaration that the will executed by her in favour of her brother,
defendant No. 2 was not for legal necessity; for declaration that some other documents
executed by defendant No. 1 were not binding on the rights of the reversioners; for a
direction that the widow should be asked to keep accounts; for an injunction restraining
her from wasting the property of her deceased husband and from injuring the rights of the
reversioners and for a appointment of a receiver of the property. The suit was filed in
1954 and while the suit was pending, the Hindu Law of Succession came into force
in1956"Section 14 of the Act is very clear and needs no clarification. The property
mentioned by the plaintiff in his plaint and acquired by Defendant No.1 is now held by
her as full owner. Nobody can have any contingent interest therein as reversioner. Hence
no suit to restrain the Defendants No.1 from making waste of the property acquired by
him in inheritance can be against her. The present suit now pending before the Court now
under the changed law is not tenable and the suit should therefore fail".

In the result, he found issue No.10 in the negative and dismissed the suit and ordered that
each party to bear its own costs.

In appeal, the learned Assistant Judge at Baroda observed that the rights of the plaintiffs
as reversioners for which they had a suit on 1-10-54 cannot be said to be extinguished and
abrogated when the Hindu when the Hindu Succession Act of 1956 came into force on
18th June 1956.He, therefore, held that the trial Judge was not justified in dismissing the
suit on the preliminary ground. He, therefore, allowed the appeal and set aside the decree
of the trial Court and also the finding of the trial Court. He remanded the suit back to the
trial Court for proceeding according to law. It is against this order that the present appeal
has been filed.

In certain circumstances, under the old law as it stood prior to 1956, reversioners could
file a suit for certain declarations and for certain reliefs in regard to the property of a
deceased person, which was in the possession of his widow and in respect of which she
had a limited estate. The question is whether any change has been effected in this position
by the enactment of the Hindu Law of Succession in 1956. Sections 14 and 15 are very
important and they read as follows:

"14. (1) Any property possessed by a female Hindu, whether acquired before or after the
commencement of this Act, shall be held by her as full owner there of and not as a limited
owner.

Explanation. In this sub-section "property" includes both movable and immovable

property acquired by a female Hindu by inheritance or devise or at a partition, or in lieu
of maintenance or arrear of maintenance or by gift from any person, whether a relative or
not, before, at or after her marriage, or by her own skill or exertion or by purchase or by
prescription, or in any other manner whatsoever, and also any such property held by her
as stridhana immediately before the commencement of this Act.

Nothing contained in sub-section (1) shall apply to any property acquired byway of gift or
under a will or any other instrument or under a decree or order of a Civil Court or under
an award where the terms of the gift, will or other instrument r the decree, order or award
prescribe a restricted estate in such property.

15. (1) The property of a female Hindu dying intestate shall devolve according to rule set
out in Section:

(a) firstly upon the sons and daughters (including the children of any pr-deceased son or
daughter) and the husband;

(b) Secondly, upon the heirs of the husband ( c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father and

(e) lastly, upon the heirs of the mother.

If we turn to the pleadings in this case, we find that the plaint relates to house of the
deceased, ornaments, immovables and cash of the deceased. So far as the houses go, it is
admitted in the plaint that the actual and constructive possession is of the widow. So far
as the ornament s go, it alleged in the plaint that the ornaments have been given by the
widow to defendants Nos. 2 and 3. In the plaint, the question of possession was not given
any importance because the plaint was filed in 1954, two years before the enactment of
the Hindu Succession Act. If it is the contention of the defendants that the suit is not
maintainable because in respect of the suit property is a Hindu Widow had becom4of the
full owner of the property, then it is for them to prove the circumstances in which she had
become the full owner of the property. A Hindu widow would become the full owner of
the property if she was in possession the date of the commencement of the Hindu
Succession Act. It is therefore, for the defendants to prove that on the date of the
commencement of the Act, the Hindu widow in question was in possession of all suit
properties. So far as the house go, on the pleadings themselves, the Hindu widow was inn
possession of the houses of the date of commencement of the Act; but so far as the
ornaments go there is no allegation in the plaint regarding the possession of the property.
In the written statement of the defendants it is alleged that the ornaments were in
possession of defendant N0.1. The question whether defendant No.1 was in possession of
the ornaments has therefore, to be decided by the Court after hearing the evidence on the
point.

It is contended by the learned counsel for the petitioners that the ornaments are valued at
Rs.8000/- and under the Baroda Hindu Nibandha. Property up to the extent of Rs.12,000/-
which a Hindu widow inherits from her husband,becomes her own absolute property.
While the property in which a Hindu widow has a limited estate, is valued at Rs/1/- lac
and consists of various items, it is difficult to decide at present to what property the rule
of 12,000/- rupees in the Baroda Hindu Nibhanda would apply and whether the
application of that rule depends on the date of the alienation of the various properties.
This question will revolve on evidence; d in this case no evidence has been taken whether
the mortgage of the house is first the alienation of the ornaments is first. If the mortgage
is denied, the question whether a mortgage has been executed will have to be gone into.
The learned trial Judge was therefore. Wrong in holding that the whole suit relating to all
the properties was not maintainable. It is open to hold that in respect of the houses, the
widow has become the full owner after the Hindu Succession Act, and, therefore, the
plaintiffs have no right in respect of the houses.The order of the Appellate Judge
remanding the suit is, therefore, not erroneous. The appeal is, therefore, dismissed. No
order as to costs.