Joint Family Property

Meaning:

• According to Oxford dictionary: Joint Family means were an extended

family consisting of two or more generation 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, daughter’s etc.
• So for the existence of joint family there must be a common ancestor but it
doesn’t mean that for the continuance of Joint Family the common ancestor
must require, by this it’s meant 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 means 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 part the Dayabhaga concept of Joint Family
is followed by the people.

Rajgopal v Padmini: whenever if two or more families agree to live together by

sharing their food, work, resources, gains etc. into a common stock, then there will
be an existence of Joint Family.

Ram Kumar v Commr: It was observed that Hindu Joint Family is considered as
a unit and it is headed by a Person called as Karta.

Member of the joint family:

1. Common ancestors.
2. Lineal male descendants’ (all male children. Up to any generation).
3. Wife may be more than one wife and widow and all male children of wife and
widows.
4. Unmarried daughters.
New provisions;
1. Adopted son.( latest provisions)
2. Daughters.

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COPARCENARY UNDER MITAKSHARA SCHOOL OF JOINT FAMILY

• 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. For
Example: Suppose in a Joint Family a Coparcenary will be consisting of four
members including father and his three male lineal descendants.
• They will be form a coparcenary with the limit of four degree or 4 generation.

B C D
• If members of family are more than 4 generation then if anyone of the
coparcener dies, the next person will be added to the coparcenary
subsequently.
• Venugopala v. Union of India: it was held that under Mitakshara School of
coparcenary is based on the notion of birth right of son, son’s son, son’s son’s
son. All this concept were followed by the Hindu Succession Act, 1956 but
there was recent amendment made to the Hindu Succession (Amendment)
Act, 2005 that even a daughter is entitled to a coparcenary under the joint
family.
• In SubhashEknathraoKhandekar v. PragyabaiManoharBirader: it was
held that even a daughter can be a coparcener according to the Section 6 of
the Act7, but widows of the son can’t be a coparcener according to the Act.

Features of Mitakshara Coparcenary:

1. Unity of ownership
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 2. Indeterminability of shares.
3. Community of interest.
4. Daughter of a coparcener may also be a Mitakshara Coparcenary. According
to Hindu Succession Act 2005.
5. Right by birth.
6. Abrogation of the rule of survivorship.

Right of Coparceners
The coparceners have the following rights:

1. Right to maintenance: Every person in the joint family property is entitled

to get maintenance. Mainly the female members, the persons who doesn’t
receive any share from the family because of disqualification grounds, or
unmarried daughters, then all of them will be getting maintenance from the
Joint family.
2. Right to challenge alienation: The term alienation means transfer of
property in case of any legal necessity or benefit of the estate. The coparcener,
karta and the sole surviving coparceners have the right to alienate the property
for the debts of the family or for any kind of legal necessity of the Joint family.
If the above mentioned person alienate the property with any kind of improper
intention or without any clear intention then the coparcener can challenge the
alienation.
3. Right to partition: The coparcener’s have the right to partition in the joint
family property. Until the partition is done, the shares of the each individuals
will be fluctuating and unpredictable.

Coparcenary when comes to an end:

1. By partition and
2. By the death of the last surviving coparcener.

Classification of property:

a. Joint family –Property or Coparcenary property :

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 It is the property in which all the coparceners have community of
interest and unity of possession. Such property consists of :-
1. Ancestral property;
2. Property jointly acquired by the members of the joint family;
3. Separate property of a member “thrown into the common
stock”, with the intention of abandoning all separate claims on
it: and
4. Property acquired by all or any of the coparceners with the aid
of joint-family funds.
b. Separate or self-acquired property:
1. Property acquired by a Hindu by his own exertion and not by joint
labour with other members of the joint family, provided it is
obtained without determent to joint-family property.
2. Property inherited by a Hindu from any person other than his
father, grandfather, or great grandfather.
3. Property obtained by a Hindu as his share of partition of a joint
Hindu family, provided he has no issue.
4. Property devolving on a sole-surviving coparcener provided there
is no widow in existence who has power to adopt or has a child
in her womb.
5. Property obtained by a Hindu by a gift or will, unless made by
his father, father’s father, father’s father’s father for the benefit
of the family and not exclusively for himself.
6. Property obtained by gift of ancestral movable property made by
the father through affection.
7. Property obtained by a Hindu by grant from the Government.
8. Joint-family property lost to the joint family and subsequently
recovered by a member thereof without the assistance of joint
junds a stranger holding adversely to the family.

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 9. ‘Gains f Science” or “Gains of Learning”, I,e, income earned by
a member of a joint Hindu Family substantially by means of his
education or training.
10. Income of separate property as given above.
11. Marriage gift- all marriage gifts received by a member.

Karta
• The Joint Hindu family is a patriarchal body, and the head of the family is
called Karta.
• Karta is the senior most male member of the family who acts as the
representative of the family and acts on behalf of the family.
• There is a fiduciary relationship between the Karta and the other family
members because every family needs a head member who can look after
the welfare of minor members and females in a Joint Hindu Family.
• Karta takes care of the whole family and its property and the decision
given by the Karta is bound to be followed by the members of Hindu Joint
Family.
• The powers and position of a Karta are wider than any of the members of
the Hindu Joint Family.

Who can be a Karta?

Senior most Male Member

• The senior most male member is entitled to become a Karta and it is his
right.
• Karta is always from the members of the family; no outsiders or stranger can
become a Karta.
• If the senior most male member of the family is alive then he will continue as
Karta, if he dies then the second senior most member of the family will take
the charge of Karta.
• Karta takes his position by consent or agreement of all the coparceners.

Junior Male Member:

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If the coparceners agree, then a junior can also become a Karta of the family. By
making the agreement with the coparceners, a junior male member can be a Karta of
the family.

Female Member as Karta:

According to Dharmastra, if there is an absence of the male member in a family then
in that situation female can act as a Karta. If in case male members are present but
they are minors, at that time also, females can act as a Karta.

Characteristics of Karta:

1. Karta’s position is unique (sui generis). His position is independent and no

one can be compared with him among the family members.
2. He had unlimited power but even if he acts on behalf of other members, he
can’t be treated as a partner or agent.
3. He controls all the affairs of the family and has wide powers.
4. He is responsible to no one. The only exception to this rule is, in case of fraud,
misappropriation or conversion, he is held responsible.
5. He is not bound to invest, save or economise. He has the power to use the
resources as he likes, unless he is not responsible for the above mentioned
charges.
6. He is not bound to divide the income generated from the joint property equally
among the family members. He can discriminate one with another and is not
bound to be impartial. The only thing is he should pay everyone so that they
can avail some basic necessities like food, clothing, education, shelter etc.

Powers of a Karta:

1. Powers of Management
Karta’s power of management is absolute. No one can question the duties of the
Karta like, he can manage or mismanage the property, family, business any way he
likes. Karta cannot deny the maintenance and occupation of property to any member.
Karta is not liable for the positive failures.

2. Rights to Income or Remuneration and Expenditure

The income of the Joint Hindu family property in a whole must be given to the Karta.
Then it is the responsibility of the Karta to allot the funds to the members for
fulfillment of their needs. Karta controls the expenditure of the funds. The scope of

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his power is only to spend such funds on family purposes like management,
maintenance, marriage, education etc.

3. Rights to Represent Joint Family

The Karta represents the family in legal, religious and social matters. The acts and
decisions of the Karta are binding on the members. Karta can enter into any
transaction on behalf of the family.

4. Right to Compromise
Karta has the power to compromise the disputes relating to management or family
property. He can compromise family debts, pending suits and other transactions. The
compromises made by the Karta, can be challenged in court by heirs only on the
ground of malafide.

5. Power to refer a Dispute to Arbitration

Karta can refer the disputes relating to management, family property to the
arbitration. If the award by the arbitration is valid then it will be binding on the
members of the joint family.

6. Power to Contract Debts

The Karta exercises an implied authority to contract debts and pledge the credits and
property of the family. Such acts are bound to be followed by the members of the
family. Even, Karta when taking a loan for the family purpose or for family
businesses then joint family is liable to pay such a loan.

7. Power to enter into Contracts

The Karta can enter into contracts and where contracts are enforceable against the
family. The contracts are binding on the members of the joint family.

8. Power of Alienation
No one among the family members can alienate joint family property. But Karta has
the power to alienate the property under three circumstances.

1. Legal Necessity
2. Benefit of estate
3. Indispensable duties

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 • Legal Necessity
This term has not expressly defined in any judgement or in any law. It includes all
the things which are deemed necessary for the members of the family.

Dev Kishan Vs. Ram Kishan AIR 2002

• The plaintiff filed a suit against the defendant. Both plaintiff and defendant
are members of the Joint Hindu Family. Defendant 2 is the Karta, who is under
the influence of Defendant 1, sold and mortgaged the property for an illegal
and immoral purpose which is for the marriage of minor daughters Vimla and
Pushpa. The defendant contended that he took the loan for the legal necessity.

• The court held that the debt was used for the unlawful purpose. Since it
contravened the Child Marriage Restraint Act, 1929, therefore, it can be called
as lawful alienation.

Liabilities and Duties of a Karta:

1. Liability to maintain- Karta is to maintain all the members of the Joint

Family. If he does not maintain any member then he can be sued for
maintenance and also can be asked for compensation.
2. Liability of render accounts- As far as the family remains joint, Karta is not
supposed to keep accounts of the family, but when partition takes place at that
time he will be liable to account for family property. If any of the heir is not
satisfied with his accounts, then he can constitute a suit against Karta to bring
the truth and to know any misappropriation is done by Karta or not.
3. Liability of recovery debts due to the Family- He has the liability to realize
the debts due to the family.
4. Liability to spend reasonably- He has the liability to spend the joint family
funds only for the family purposes.
5. Liability not to eliminate coparcenary property- It is the liability of the
Karta not to alienate the coparcenary property without any legal necessity or
benefit to the state.
6. Liability not to start new Business- It is the liability of the Karta not to start
a new business without the consent of other coparceners.

Responsibilities of Karta
The duty of a Karta is to provide clothing, food, shelter etc, to the members of the
joint family. There are several responsibilities of Karta which include:

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 1. Maintenance
Every member of the family including Karta has the right to maintenance. The
Responsibility of Karta is to maintain all the members of the family. If he does not
maintain any member properly, then he can be sued for both maintenance and dues
of maintenance.

2. Marriage
The Karta is responsible for the unmarried members especially the daughters. The
expenses for the marriage will be taken out of the Joint Family property.

3. Representation
Karta acts as a representative on behalf of the family. This is because he must
perform some responsibilities and liabilities on account of the family. He must pay
all the dues and the taxes. He can be sued on behalf of the family during any
agreement or dealings.

4. Accounts at the time of Partition

Status of a joint family comes to an end due to the partition. Under Mitakshara Law,
it means:

5. Severance of status and interest

It’s an individual decision, where a member wants to divide himself from the joint
family and enjoy undefined and unspecified share separately.

6. Actual division of Property

It is the consequence of the declaration of the desire to cut off. However, it is a
bilateral action.

Dayabhaga School
Dayabhaga School is also considered as an important school of Hindu Law. It owes
its name from ‘Jemutavahan Digest’ on leading Smriti by name of Dayabhaga. This
school prevailed in Assam and West Bengal. It has limited jurisdiction as it deals
with partition, inheritance and joint family. According to Kane, it was incorporated
in between 1090-1130 AD.

Dayabhaga school is sub-divided into:

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• Dayatatya
• Virmitrodaya
• Dattaka Chandrika
• DayakarmoSangrah
• In Dayabhaga School the concept of coparcenary comes into the existence
for the first time on the death of the father when the son inherits their father
property. It cannot consist of four generations. The concept of coparcenary
based on the notion of death right. It means that only after the death of the last
holder i.e. father, the son inherits their father’s property.

• Coparcener has an interest in the property given only after the death of the last
owner. It means as long as the father is alive, he is the master of his own
property, whether ancestor or self-acquired which signifies that during the
lifetime of the father, no coparcener can ask for partition and demand his share
It is based on the ‘principle of ownership of death.’ There is no community
of interest yet there is also existence of unity of possession in this school.

• Son has no right to ask for the partition of ancestral property against his
father because the father is sole owner of that property. During, the
lifetime of last holder he is sole owner of his property so no coparcener can
ask for partition and demand his share. In this school, the member of the
family enjoys absolute right to dispose of their property.

• Each coparcener has a fixed share. But till a partition by meets and bounds i.e.
the distribution of properties takes place, no coparcener gets his share.

• In Dayabhaga School the share of the coparcener is fixed. It is not a fluctuating

and uncertain interest.
• The property devolved by the “Doctrine of Succession”. Therefore, if a
coparcener dies, his share does not pass by survivorship to other coparcener
but devolves by inheritance to his heirs.

• ‘Law of Succession’ based on the “Principle of spiritual benefit and

religious efficiency” means that one who conferred more religious benefits
descendant entitled to inheritance in the preference to other who confers a less
spiritual benefit.

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 Debts
Ancient Hindu Law - Mitakshara Law:

Mulla Hindu Law, under the chapter “Debts-MitaksharaLaw” concludes with the
Summary of the chapter as thus—

1) The separate property of a Hindu is liable for the payment of his debts in his
lifetime as well as after his death.

(2) The undivided interest of a coparcener in coparcenary property is always liable

for the payment of his debts in his lifetime.

(3) Sons, grandsons and great-grandsons are liable to pay the debts of their ancestor
if they have not been incurred for an immoral or unlawful purpose. Their liability,
however, is confined to their interest in the coparcenary property; it is not a
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personal liability so that a creditor of the ancestor cannot proceed against the
person or against the separate property of the sons, grandsons or great
grandsons.

(4) As sons, grandsons and great-grandsons are liable to pay the lawful debts of their
ancestor to the extent of their interest in the coparcenary property, a creditor of
the ancestor is entitled to attach and sell not only the interest of the ancestor, but also
the interest of the sons, grandsons and great-grandsons in the joint family property
in execution of a decree obtained by him against the ancestor alone.

(5) As sons, grandsons and great-grandsons are liable to pay the lawful debts of their
ancestor to the extent of their interest in the 1 coparcenary property, the ancestor
can sell or mortgage not only his own interest, but the interest of the sons,
grandsons and great-grandsons in the joint family property, to pay an antecedent
debt of his own.

(6) The undivided interest of a coparcener in coparcenary property is not liable for
payment of his debts after his death, if it has devolved by survivorship only upon
collateral members of the coparcenary.

Doctrine of Pious Obligation: -

• Pious obligation: religious, moral and legal recognition under Hindu law.
• To discharge debts of deceased father.
• Reason: Spiritual benefit will occur to his(father) soul but not for benefit of
creditors.

Essentials:

1. Son, grandson and great grandson – only discharges father’s, grandfather’s

and grandfather’s debt.
2. All debts not liable for such as;
a. Immoral or illegal purpose.
b. Age: no limits, both minor and major.

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 3. Date of debt: they were joint no partition (pre-partition). If the son got the
partition share and separated no liability. Son not liable for post partition
debt.
4. Son not liable where debt would lead to criminal prosecution. Sec 6(4);
concept of pious obligation is very rigid. Protects the interest of the dead but
harasses the living person (son). After amendment act 2005 sec 6 (4) – court
are barred from recognizing (pious obligation) any right of Son, grandson and
great grandson.
5. Father is alive he can sell or mortgage entire JFP to discharge debt. Even the
debt was for his personal benefit. Condtion:
a. Debt was prior to the alienation.
b. Not for immoral purpose.
c. His act prudent, for example, to run business.

In addition to the obligation imposed by the Mitakshara Law on the

Son/Grandson/Great-Grandson, the doctrine of Pious Obligation is also applicable
to a legal heir to satisfy the debt of his ancestor provided the debts are not of an
immoral character.

Nature of Liabilities:

1. Religious
2. Moral
3. Legal
1. Religious duty: The obligation imposed by the Mitakshara Law on the
Son/Grandson/Great-Grandson, the doctrine of Pious Obligation is also
applicable to a legal heir to satisfy the debt of his ancestor provided the debts
are not of an immoral character.
Origin:
• Origin in Smriti which regard non-payment of debt as a positive sin,
the evil consequences of which follow the undercharged debts even in

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 the world afterwards. It is for the purpose of rescuing the father from
his torments in, the next world that an obligation is imposed upon the
sons to pay their fathers debts.

According to Brihaspati :

• Father is no longer alive; the debt must be paid by his sons. The father’s
debt must be paid first of all, and after that a man’s own debt; but a debt
contracted by the paternal grandfather must always be paid by the sons,
as if it were their own;
• The grandfather’s must be paid by his son’s son without interest, but
the son of a grandson need not pay it al all.
• Sons shall not be made to pay Avyavaharika debt.

According to Manu; “Money due by a surety or idly promised or lost at a play or

due for spirituous liquor, or what remains unpaid of a fine and tax or duty, the son
shall not be obliged to pay.

Gautam and Yajnavalkya : “ a son has not to pay in this world his father’s debt
incurred for spirituous liquor, for gratification of lust or gambling, nor a fine nor
what remains unpaid of a toll; nor idle gifts.

Narada: “A father must not pay the debt of his son but a son must pay a debt
contracted by his father excepting those debts which have been contracted from love,
anger, spirituous liquor, games or bailment.

Mitakshara School of Hindu Law:

1. The son is under pious obligation to pay his father’s debt which is
“Vyavaharika” I,e, lawful and not avyavaharika i,e, unlawful, illegal or
immoral, incurred before partition, i,e, when they were joint.
2. The son is not liable for a debt contracted by father after partition.

HVyavaharika” unlawful debt:

1. Debts due for spirituous liquors’;

2. Debts due for lust;
3. Debts due for gambling;
4. Unpaid fines;
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 5. Unpaid tolls;
6. Useless gifts or promises without consideration;
7. Promises made under the influence of lust or wrath;
8. Commercial debts;
9. Any debt which is ‘Vyavaharika” which is rendered by Colebrook as
equivalent to a debt for a cause ‘repugnant to good morals’.
10. Surety ship debts.

2. Moral obligation:

• It is one’s moral duty to pay the debts of a person to whose property one has
succeeded as heir.
• He who inherits the estate of another must pay such other’s debts.
• It is immaterial in the case as to whether the debt was properly incurred or
was tainted by unlawful, immoral purpose.
• Therefore, the successor is bound to pay his ancestors immoral debts out of
such property.
• Liability of the heirs still subsists despite the provisions of Sec 6 (4) of the
Hindu Succession Act as it stands after the Hindu Succession (Amendment)
Act, 2005.

3. Legal obligation: -

• Besides religious and moral duties, there is also a legal obligation to pay bank
the debt secured by the father.
• With respect to a money debt of the father, sons may be bound by proper
proceeding taken in court of law by creditor against the father. Although the
sons are not made parties to the suit.
• The whole family property is liable for debts incurred for benefit of the family
by the father as manager.
• Reasonable interest on such debt is also payable by the family.

Conclusion:

After the commencement of the Hindu Succession (Amendment) Act, 2005, no court
shall recognize any right to proceed against a son, grandson or great-grandson for

15
the recovery of any debt due from his father, grandfather or great-grandfather solely
on the ground of the pious obligation under the Hindu law, of such son, grandson or
great-grandson to discharge any such debt.

Partition
Introduction:

• The division of property into two parts is known as partition.

• The end of joint family.
• Division of family.
• Under the Hindu law, partition means a division of property of a Joint Hindu
family in order to give separate conferment of status on the undivided
coparceners.
• No partition is possible if there is only a single coparcener in a Joint family.
A coparcener is a person who inherits estate as co-heir with others

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 • A partition can be possible on the property which is capable of being
partitioned. If at all there is a separate property of any of the coparceners in
the Joint family it cannot be subjected to partition

Essentials of a valid partition:

A coparcener reserves a right to demand partition at any time without the consent
of the other coparceners. Therefore, in order to bring demand for partition the
following essentials must be established:-

1. There must be an intention to separate from the Joint Family.

2. There must be a clear, unequivocal and unilateral declaration which
conveys the intention to separate from the Joint Family.
3. The intention must be communicated to the Karta or to the other coparcener
in his absence

Subject matter of partition ;( property can be subjected to partition).

• All joint family properties are subject of partition.

• Except:
1. Certain species of JMP which because its nature is not capable to
divide.
Ex:
a. Common tank.
b. Dwelling house.
c. Common way
d. Common stairs
e. Well
f. Temple
g. Idols
h. Ornaments.

Under such circumstances:

a. Can use property by tern by turn.

b. Dwelling house can be used by one person and give some other share.
c. Senior most members will given option.
d. Temple (how can do good pooja).
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Partition can be done after following circumstances:

a. Debts.
b. Maintenance (dependents)
c. Marriage performance of some ceremonies.

Mrutunjay Mohapatra V. Prana Krushna Mohapatra, the Court stated that when
the elder brother had purchased the property from his persona funds it cannot be
subjected to partition and included in the Joint Family at the instance of a younger
brother.

a. Mitakshara school and

• Birth right.
• No specified right. Share will be unspecified.
b. Dayabhaga School.
• Specific share.
• Right by death of the father.

Modes of partition:
1. By agreement: it can be express and implied agreement. Main thing is
intention. Approvier v Rama (1866) If all the coparceners dissolve the joint
status, it is known as Partition by agreement. The court does not have the
power to recognize any partition unless there is an agreement between the
parties on mutually agreeable terms.
2. Oral partition: Oral and written agreement both is considered valid but with
intention.
3. By unilateral declaration; (single person can demand partition) not
necessary that all member should agree. “The essential element of partition is
the intention to separate which must be communicated to other coparceners.
Therefore, a partition may come into effect even by notice to the coparceners,
whether accompanied by a suit or not.
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 4. By Arbitration: In this mode of partition, an agreement is made amongst the
coparceners of a joint family in which they appoint an arbitrator to arbitrate
and divide the property. Such a partition becomes operative from the date
thereof.
5. By conduct: ex- cooking separately and shifting to new independent house.
6. By suit: (mere intuition of such a suit effects) He most express his intention
to separate himself from the joint family property is filing a suit in the court.
As soon as the plaintiff expresses his unequivocal intention to get separated
in the court, his status in the joint family property comes to an end. However,
a decree from the court is required which decides the respective shares of the
coparceners. The severance of status takes place from the date of filing such
a suit in the court. Both a minor and a major coparcener may approach the
court for this purpose.
7. By father: The father under the Hindu Law has superior powers in
comparison to the other coparceners wherein by virtue of his rights i.e. ‘patria
potestas’(paternal rights), he can separate himself from the Joint family15
and also separate each and every son, including minors by affecting a
partition.
8. Marriage under Special Marriage Act.
9. Conversion: Conversion to a non-Hindu religion can lead to severance of
status of coparcener belonging to the Joint Family. The member who
converted into religion would lose his membership of the coparcenary but it
will not affect the status of other coparceners.

Who can claim Partition?

1. Every adult coparcenay.

2. Son and grandson can claim.
3. After born son.
a. Those born after partition but begotten before it.
b. In case of a son born and begotten after the partition. Only with fathers
share.
4. Adopted son: Adopted son is considered has natural son and he gets all the
rights of natural son. Sec 12 of Hindu Adopting and Maintenance Act.
5. Purchaser of undivided coparcenary interest.

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 6. Widows: A widow though not a coparcener under Mitakshara Law, is entitled
to obtain a share when the partition is made between the coparceners,
however she cannot demand partition.

Reopening of partition:

1. Fraud: Any partition can be revoked which is done because of the fraudulent
activities. For example- If the assets are fraudulently represented, then the
coparcener can claim his right for the reopening of partition.
2. Son in Womb: If a son is in Womb, and no shares were allotted to him, at the
time of partition then later it can be reopened.
3. Adopted son.
4. Disqualified coparcener: There can be instances wherein due to some
technical constraint, the disqualified coparcener can fall short of his share at
the time of partition. He reserves a right to get the partition removed by
removing the disqualification.
5. Son conceived/born after partition.
6. Absentee coparcener. (no separate share is kept for minor) Coparcerner can
reopen the partition if he is absent at the time of partition and no share is
allotted to him.
7. Minor coparcener. Only under legal necessity by Guardians
8. Mistake: If at all the members of the Joint family have left their joint family
properties by mistake and are left out of the partition, then the partition can
happen later.

Effect of Partition:

• A Partition can lead to severance of property or separation of property in a

joint Family. After partition, a person is considered as free from his rights,
obligations, duties and responsibilities arising out of a Joint Family.
• After the partition has happened the fixed number of shares of every
existing coparcener gets defined. Moreover, post-partition since the
number of shares has been fixed the fluctuations that happen in a family
due to births and deaths stops.

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 • And the property which has been acquired by the coparcener after the
partition will be known as his separate property or self-acquired property.

Religious and Charitable Endowments

Introduction:
Endowments are properties set apart or dedicated by gift or devised for the worship
of some particular deity or for the establishment or maintenance of religious or a
charitable institution in the nature of mankind’s well-being.

Meaning:
• The term Endowment means
a. the donation of property for:
1. religious, or
2. charitable or
3. for the public benefit or
4. for some section of the public.
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 b. in the advancement of
1. religious knowledge,
2. commerce,
3. health,
4. safety, or
For any other object beneficial to mankind.
• The Establishment of idols, hospitals, schools, universities almshouses (for
distribution of food to Brahmanas or poor), etc., are some of the examples of
Religious and Charitable Endowments.
• Endowments form a special branch of the law of gifts and bequests.
• The endowments are really gifts.
• Dispositions for religious and charitable purposes have been highly favored
by Hindu law.
• In the Hindu point of view dedication of property to deity is not only lawful
but also commendable.

Kinds of Religious Endowment:

There are two types of Religious Endowment:
1. Private- These endowments are only for the purposes of family idols.
2. Public- These endowments are for the benefit of the public at large or a
specified class.

Requirements to dedicate the property:

1. A Hindu who is of:
• sound mind
• not a minor
• who wishes to establish via expressing his purpose
2. A trust is not required for the purpose.
3. The Religious or Charitable purpose should be clearly specified and properly
intended for the endowment.
4. To create an Endowment, writing is not necessary except where it is created by a
will in which case the will must be in writing attested by at least two witnesses.
5. A clear and unequivocal manifestation of intention to create a trust investing the
same in the donor or another as a Trustee is enough to constitute a dedication.

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6. When the donor has completely divested himself from the property, he cannot
revoke the trust or derive any benefits therefrom except what has been reserved.
7. A gift or bequest to an idol not in existence at the time of the gift or even at the
time of the testator’s death is not invalid.
8. The principles barring a bequest or gift in favor of an Unborn person are
inapplicable to the idol.

Essentials of Valid Endowments

1. Absolute Dedication: The first condition provides that the donor must
dedicate the property absolutely for the worship of a deity or for a particular
charitable purpose. The donor must divest himself of the beneficial interest in
the property.
2. The object must be Definite: In order to create valid endowments, the object
must be definite. The object of the gift must be a definite idol or a definite
charitable object.

3. Property must be specific: Another essential of valid endowments is

property must be specific. No endowments are valid unless some definite
property is dedicated.
Illustrations: A by means of a will directed that money should be spent for a
specified purpose but did not mention the exact amount. Such type of
bequest is invalid for uncertainty.
4. Settlers should be capable of creating endowments: In order to create valid
endowments, settlers should be capable of creating endowments. The settler
must be a major of sound mind, must not suffer from any legal
disqualification.
Raghunath V. Govinda:
• karta’s alienation of JHF property providing a permanent shrine to a
family idol was held to valid.
• The power of Karta to dedicate a small portion of JFP for the creation
of an endowment has been held to be well settled.
5. Endowment must not be opposed to any law: The fifth condition is that
endowments must not be opposed to any law.
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 Debutter Property
Property absolutely dedicated to religious or charitable purposes is called debutter
property. Debutter means literally belonging to a deity. Where the dedication is
absolute and complete, the possession and management of the property belongs, in
the case of a deosthana or temple, to the manager of the temple, called shebait but
the property vests in the idol; and in case of matha that is an abode for students of
religion, to the head of the math called mahant.

Matha
Meaning: The term Math signifies a building or set of buildings in which Hindu
religious mendicants reside under a superior, who is called a Mahant.
Math is a Hindu religious institution presided over by a person, the succession to
whose office act in accordance with the direction of the founder of the institution or
is regulated by usage and
1. Whose duty it is to engage himself in imparting religious instruction or rendering
spiritual service; or
2. Who exercises or claims to exercise spiritual headship over a body of disciples;
and includes places of religious worship or instruction which is appurtenant to the
institution.

Position of Matha
• Mahant is the manager of the property of the Matha who was also the head of
the institution.
• Normally, Mahant was the Sanyasi or Bramihachari but in some Mathas there
was permission to marry.
• A female Hindu can also become a Mahant but she is incompetent to perform
spiritual and religious rituals or acts.
• He is also the manager of the property.
• He is the head of the institution.

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 • The performance of religious acts, worshipping of idols, and the execution of
the traditional religious activities are the responsibilities of the Mahant.
• All the properties of the institution vest in him.
• He keeps the property of the institution as a trustee.
• As a Mahant, he has the power of alienation over debutter property.
Case Law
Krishna Singh v. Mathaura Ahir, According to the Supreme Court— “A Matha is
an institutional sanctum presided over by a superior, who combines in himself the
dual office of being the religious or spiritual head of the particular cult or religious
fraternity and of the manager of the secular properties of the institution of the
Matha.”

Termination of the post of Mahant:

In the following circumstances, the Mahant’s post gets extinct—
1. Death of the Mahant;
2. Waiver of the post of Mahant;
3. On developing some incapability;
4. Mismanagement of the Matha, or immoral life.

Shebait:
• The Shebait of a temple is the administrator of the properties attached to it.
• He is in the position of trustee.
• In regard to the service of the temple and the duties appertaining to it, his
position is that of the holder of an office of dignity.
• Shebait-ship involves two ideas:
1. The ministrant of the deity, and
2. Its manager.
• It is an office to which certain rights are attached.

• A Shebait has no legal property in the debutter; it vests in the idol.

• He is entitled to the custody of the idol and its property.

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 • Offerings made to an idol belong to:

Position of Shebait:

1. The Shebait is bound to do whatever is necessary for the benefit or for the
preservation of the debutter property.

2. He may incur debts for the proper expenses of keeping up the religious worship,
repairing the temple or other possessions of the idols, instituting or defending hostile
litigation, and preventing the endowed properties from being brought to sale in
execution of decrees binding upon the temple.

3. As a trustee, he cannot purchase any part of the debutter property, even if he pays
a good price for it.

4. In the management of the property, if he incurs any out-of-pocket expenses, he is

entitled to be reimbursed from the property.

5. A Shebait has the power of alienation over debutter property.

Devolution of office of Shebait:

1. The succession in the case of a Shebait’s office is governed by the terms of the
deed or will by which it is created, and in the absence of such provision, or in the
absence of such custom, the right passes to the founder and his heirs, making sure
that the person on whom the office devolves is fit to perform the rites.

2. A founder cannot lay down a line of succession for Shebait-ship which is

inconsistent with the general law. However, it is also held that it is competent for
an heir of a founder to create a new line of succession on the failure of the original
line of succession.

3. There is conflict on decisions whether a Shebait can nominate a successor by

will. The Bombay High Court has answered this question in the affirmative, whereas

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the High Courts of Calcutta and Allahabad have held that a Shebait cannot nominate
his successor by will.

4. When the office of Shebait becomes vested in more than one person, the
interested parties can arrange between themselves as regards the due execution of
their functions, – in turns or in some settled order or sequence.

5. When the right to worship carries with the right to receive offerings, any one of
such persons can sue for a division of the right, in the same manner as a person suing
for a partition of a joint Hindu family.

6. However, when the office does not carry the right to receive offerings, no suit can
be laid for a division of the right, and they must manage property jointly.

7. The Supreme Court has held that a female is also entitled to succeed to the
religious office of Shebait-ship.

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