1

Damodaram Sanjivayya National Law University,

Visakhapatnam
Family Law II
Project Work on:
Study of Hindu Joint Family and Hindu Undivided Family
Submitted To:

Submitted By:

Dr. S. Radhakrishna

Shaitan Singh
4th Sem., 2nd Year
Roll No. 2014108

Acknowledgement

I would like to thank Dr. S. Radhakrishna for giving me the opportunity for making a project
on the following topic and for guiding me in the course of making it. I would to like to thank
the librarian for assisting me in the book and the materials.

CONTENTS

Introduction
Hindu Joint Family: Classical Concept
Coparcenary
Incident of Hindu Joint Family
Rights of members of joint Hindu Family
Hindu Undivided Family
Characteristics of HUF
Features
Power of Karta
Co-parceners
Daughter as a coparcener
Whether Hindu Undivided Family and Hindu Joint Family
Cases

List of Cases
Surjit Lal v. Commissioner of Income Tax, (1978) 101 ITR 776.
Tek Bahadur Singh v. Devi Singh, AIR 1966 SC 292.
Commissioner of Income Tax Bombay v. Gomedalli Lakshminarayan, AIR 1935 Bom
412.
C.G.T. v. B.K. Sampangiram, (1986) 160 ITR 188 (Kar).
Surjit lal Chhabra v. CIT, (1975) 101 ITR 776 (SC).

Introduction
The Hindu Joint Family is a normal condition of the Hindu society. Its origin can be
traced to the ancient patriarchal system where the patriarch or the head of the family was the
unquestioned ruler, laying down norms for the members of his family to follow, obeyed by
everyone in his family, and having an unparallel control over their lives and properties. At the
root was general family members welfare or promotion of a family as a unit for which
personal interests of the family system members could be satisfied. Under Hindu Law
therefore the joint family system came first in historical order and the individual recognition
of a person distinct from the family came later. The ancient system generally treated the
property acquired by the members of the family as a family property or the joint property of
the family with family members having or the other right over it. With gradual transformation
of the society and recognition of the members of the family as independent in their own right,
concept of separate property and rules for its inheritance were developed. This dual property
system, though considerably diluted, has survived the lashes pf time, the judicial and
legislative onslaught and the Hindu society still recognises the joint family and joint property
as unique entities having no similar concept alive anywhere else in the world.
A HUF, as such, can consist of a very large number of members
including female members as well as distant blood relatives in the male line. However, out of
this, coparceners are only those males who are within 4 degrees in lineal descendent from the
common male ancestor. The relevance of concept of coparcener is that only coparceners can
ask for partition. The other male family members; i.e, other than coparceners in a HUF, have
no direct claim over HUF property, but can claim only through the coparceners 1. A Joint
Hindu Family is the normal condition of Hindu Society, or at least it was until the last few
decades. A joint Hindu family is a group of relatives tied together by ties of kinship &
marriage and descended from a common ancestor. It includes children, childrens children
down the line, spouses. A joint Hindu Family is normally joint in worship/kitchen/business.
Even daughter in laws/widowed daughters who has returned back to their parental side are
part of a Hindu joint family. A joint family may encompass countless generations.

1 Dr. Poonam Pradhan Saxena, Family Law Lectures & II, Third Edition.

Hindu Joint Family: Classical Concept2

A Hindu Joint family consists of all the male members descended lineally from a common
male ancestor together with their mothers, wives or widow and unmarried daughters 3. An
unmarried daughter on marriage ceases to be a part of her fathers joint family and joins her
husbands joint family as his wife. If a daughter becomes a widow or is deserted by her
husband and returns to her fathers house permanently, she again becomes a member of her
fathers joint family. Her children however dont become members of her fathers joint family
and continue being member of his fathers joint family. Even an illegitimate son of a male
descendant would be a member of his fathers joint family. A child in womb till it is born is
not a member of the joint family for taxation purposes but is treated as in existence for certain
purpose under Hindu Law.
The members of joint family are bound together by the
fundamental principle of sapinda-ship or family relationship, which is the essential feature of
this institution. The cord that knits the members of the family is not property but the
relationship with one another. The Mitakshara doctrine of joint family property is founded
upon the existence of an undivided family as a corporate body. The first requisite is the
family unit, and the possession by it of family property is the secondary requisite. Such body
with its heritage, ia purely a creature of law and cannot be created by acts of parties save in so
far that by adoption a stranger may be affiliated as a member of that corporate family. In
absence of any evidence to the contrary a uterine brother a member of the Hindu Joint family
in Nepal.4

2 Supra 1.
3 Surjit Lal v. Commissioner of Income Tax, (1978) 101 ITR 776.
4 Tek Bahadur Singh v. Devi Singh, AIR 1966 SC 292.

Coparcenary5
Coparcenary is a narrower institution within a joint family comprising only male members.
The primary purpose of understanding the concept of coparcenary is to determine the group
of persons who can offer spiritual ministration to the father. It signifies a relationship. These
descendants, i.e. son, son of a son. Son of a son of a son also have a right by birth in the
property of the property and therefore its incidental implications are property related.
Gradually the spiritual aspect was dominated by the understanding of the concept in relation
to the property that they can collectively own. With this segregation between the legal
purpose and the religious purpose, the concept of coparcenary, which initially had the
dominant objective rooted in relationship, is currently understood to ascertained the right and
obligations of the members of the family in the property owned by the joint family which is
also called the joint family property or the coparcenary property. The seniormost among the
coparceners is called the last holder of the property and from him a continuous chain of three
generation of male members from the coparcenary. All coparcenary have an interestin the
coparcenary by birth and have a right to ask for partition of the same. Under the classic law
no female be a member of coparcenary. A person removed by more than four degrees is not a
coparcener. An illegitimate son of a lineal male descendant is a member of the joint familybut
it is not a coparcenar.

5 Supra 1.

Incident of Hindu Joint Family6

(1) A common male ancestor is necessary to bring the Hindu Joint Family in existence
but is not necessary for its continuation. After the death of such common male
ancestor the rest of the family continues to be joint Hindu Family.
(2) A Hindu Joint family is purely a creature of law. This means, it cannot be created by
the act of the members or an agreement between parties. Therefore, a strangercannot
be made a member of a Hindu Joint family even by agreement among all members.
The only execution to that is marriage and adoption. A female can be introduced as a
member of the joint family by virtue of her marriage with a lineal male descendant
and a child, male or female, can be added to the family by birth or by a valid adoption
into the family.
(3) A Hindu joint family has no legal entity distinct or separate from its members. It is a
unit and is represented by the manager of the joint family who is called Karta in all
family members. It cannot sue or be sued in its own name. It is neither a juristic
person nor a coparcenor and therefore cannot convey the property in its joint
character.
(4) A Hindu joint family is not a juristic personality capable of holding property as an
entity separate from its members. Therefore when it is said in relation to joint family
that it possesses joint family property or coparcenary property, it literally means that
not only the family as a unit but its members collectively own property.
(5) The status of a joint family member can be lost by conversion to another faith, by
marriage to a non-Hindu, on being given in adoption by the competent parents, and
for a daughter, on getting marriage.
(6) All members in a joint family do not have equal rights in the family property.
Coparcenary have an interest in the coparcenary property while female and male
members other than coparceners or disqualified coparceners have a right of maintance
and a right of residence in the joint family house.
(7) The continuation of a joint family is not dependent upon the presence of a male
member in the family.
(8) Plurality of members is necessary for constitution of or continuation of joint family
but plurality of male members is not necessary for its continuation. The joint family
does not end even with the death of a male member as long as it is possible in the
nature of things to add a male member in the family.

6 Supra 1.

(9) A Hindu joint family may continuance on perpetuity until it ends. Even where a
partition is effected this joint family may break but does not end as in its place two or
more joint families come into existence.

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Rights of members of joint Hindu Family7

In a Hindu joint family, all its members do not have equal rights. The interest in the
coparcenary property is with the coparceners, including a right to demand its partition, and a
right to challenge its unauthorised alienation made by Karta. All other female members
including the widow of deceased coparceners, male members beyond four generations,
disqualified coparceners, and illegitimate sons of lineal male descendants, have a right of
maintenance out of the joint family funds and a right of residence in the joint family home.
The right of residence cannot be enforced as a matter of right if any member, including a
coparcener has proved to be a nuisance to the other family members and his continued
residence in the family will adversely affect the interests of the other members or disturb the
peace of the family. Unmarried daughters in the family also have a right to be married out of
the joint family funds.

7 Supra 1.

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Hindu Undivided Family

Characteristics of HUF: The Karta can function in Dual capacity and can claim remuneration and other
benefits from the HUF.
It may be composed of Large or Small or Nuclear Joint Families.
Every above said families may hold the property in its own right, may be assessed for
its income as a separate unit.
A There need NOT be more than one MALE member to form HUF.
If the family is reduced to Sole -Survivoring coparcener with other family members,
income tax is leviable on the joint family and not on male members as individual.
There can be a HUF comprising only of female members.
A member of the family carry on any other business individually it will be his
individual income not of family even if he borrows requisite capital from the joint
family fund.
Mostly fees or salary earned by karta as director or partner may be considered as his
individual income.
Salary income of the individual will not be assessed as income of the HUF merely by
the reason that the person having been educated, maintained, supported wholly by
joint family funds.

Features:Formation: -- Joint Hindu family cannot be formed or created by any contract or agreement
because this organisation came into existence because by the operation of Hindu succession
act 1956. It requires minimum of 2 people (at least one male member).
Karta: -- The Karta has to be the oldest male in the family. If he passes away, his wife
cannot become the karta. His eldest son will take his place. If he chooses not to, he can give
up his right and the next son in line can take his place.
Female as a Karta:- The answer can't be No in the light of the amendment in the Hindu
succession Act in 2005.An unmarried daughter, in the unfortunate event of her father passing
away, will become the Karta of the HUF if she has no brother.

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Power of Karta:

Managing the affairs of HUF.

Control & become custodian of the finances
Can borrow money for & on behalf of HUF
Spend money for the family & is not Accountable for it.
NOT liable to submit account to anybody.
Can make partition of the of the family Suo Moto.
Quantum of partition shall be with KARTAs liking.
HUF cannot enter in to contracts, or form partnership firm, or represent except
through Karta, however Karta may allow others to represent HUF.

Co-parceners:-- This is what all the male members are referred to as.
A Hindu coparcenary includes the sons, grandsons and great-grandsons of the holder of the
joint family property. By virtue of their birth, they acquire an interest in the property.

Daughter as a coparcener: On 9th September 2005, the Hindu Succession Act, 1956 was amended to provide that a
daughter too could be a coparcener i.e. joint heir, like her brother to the joint family's assets
and she too could enforce the partition of the family property to claim her individual share.
She continues to be the coparcener in her father's HUF even after she gets married and forms
another HUF with her husband.

Whether Hindu Undivided Family and Hindu Joint Family 8: In revenue status, the expression Hindu Undivided Family has been used. This appears
slightly different from the term Hindu Joint Family under Hindu Law. Section 2(9) of the
Indian Income-tax Act, 1922 defines a person to include, inter alia, a Hindu undivided
family. A Hindu undivided family is taxable unit for the purposes income tax and super tax.
The expression Hindu Undivided family finds reference in various provision of this act but
this expression is not defined in this Act. The reason for the omission according to the SC is
that the expression has a well-known connotation under Hindu Law and being aware of it, the
legislature did not want to define the expression separately in the Act. Therefore, the
expression Hindu Undivided Family must be construed in the sense in which it is understood
under Hindu Law. The SC has said that there is nothing in the scheme of the Wealth Tax Act
8 Supra 1.

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also suggest that it is different from joint Hindu joint family and undivided family are
synonymous terms.
The SCs observation that the expression Hindu undivided family and Hindu joint
family are synonymous, there are some basic differences between two:
(1) One of the basic presumption under Hindu law is that every Hindu family is presumed
to be a joint family until contrary is proved. There is no such assumption under the
taxation laws for a Hindu family. On the other hand, this is the main point of
contention.
(2) Under Hindu law though there is presumption that every Hindu family is a joint
family there is no presumption that it owns joint family property. Therefore, under
Mitakshara law there can be joint family without joint family property. However, the
concept of Hindu undivided family under the revenue laws is linked only with the
property. The concept of a Hindu undivided family owning any property is
meaningless as far as assessment is concerned.
(3) Under Hindu law, a son in the womb of his mother in many aspects treated as equal to
a son in existence. He can also restrict the rights of a sole surviving coparcener to
alienate the property, yet for the purpose of revenue laws, such a son is not

into

cognizance till he is actually born alive.

(4) The very purpose for which the expression Hindu joint family or Hindu undivided
family is understood by these two legal branches, viz. the revenue authorities and
Hindu law, are different. The importance of the difference lies in the fact that for the
purposes of super tax a person will be allowed a larger exemption if he is taxed as the
manager of a joint family than, if he is taxed as an individual. For imposition of tax,
whether a person is to be assessed as an individual or as the Karta of a joint family is
the primary consideration. If the money is spend for the maintenance of a joint family.
Thus this remains the focal point of inquiry whenever there is an examination of the
character of the family for revenue purpose. All other considerations are subsidiary.
(5) These differences in approach have created a distinction between a Hindu joint family
under Hindu law and a Hindu undivided family for taxation purposes. This is the
reason why under Hindu law there cannot be joint family consisting only of a mother
and a daughter and the mother will not be Karta of this Hindu family; yet for the
purpose of income tax she can be assessed as the head/manager of the Hindu
undivided family, its composition and its unique feature has multifarious purpose. The
concept of Hindu joint family is the starting point of understanding the Hindu law of

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ownership and devolution of ancestral property, the rights and obligations of its
various members, rights of survivorship in this property, rights and modes of partition
and the ascertainment of their shares. The concept of joint family also has a bearing
on succession laws and the power of a member to dispose of his share inter vivos or
through a will. The purposes are beyond comparison. In complete contrast to the
narrow object under the revenue laws the joint family concept under Hind law is the
starting point of a fully developed separate branch of altogether.

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Cases

1. Commissioner of Income Tax Bombay v. Gomedalli Lakshminarayan9

This is a reference made by the Commissioner of Income-tax under S. 66 (2),
Income-tax Act, and the first question raised is: Whether, in the circumstances of the case, the
income received by right of survivorship by the sole surviving male member of a Hindu
undivided family can be taxed in the hands of such male member as his own individual
income, or it should be taxed as the income of a Hindu undivided family, for the purposes of
assessment to super-tax, under S. 55. Income-tax Act, 1922
A Hindu joint family consisted of the father, his wife, his son and the sons wife,
the son being the present assesse. The father died in 1929 before the year of assessment, so
the joint family then consisted of the son, his mother and his wife the question before the
Income Tax Commissioner was whether the joint family can continue even when there was
only one male member i.e., the son in this case and whether he is to be assessed as an
individual or as the Karta of the joint family of which he was a member. The importance of
this question lay in the fact that for the purpose of super tax he would be allowed a large
exemption if he was taxed as an individual. It also means that if the Hindu joint family is
taxed as a unit the individual members are not liable to be charged in respect of what each
member receives as his or her share of the joint income.
A Hindu undivided family is a unit for taxation under Ss. 3 and 55 and
under S. 14 (1) it is provided that the court held that the tax shall not be payable by an
assessee in respect of any sum which he receives as a member of a Hindu undivided family,
which seems to mean that as a Hindu undivided family is taxed as a unit, the individual
members thereof are not liable to be charged in respect of what each member received as his
or her share of the joint income. The court held that he was to be assessed as the Karta of the
Hindu undivided family. Explaining the concept of Hindu undivided family and a
coparcenary and the distinction between the two, the court observed that the while for a
coparcenary the presence of at least two male members in the joint family is a necessary
requirement, a Hindu joint family can continue even with one male member, and accordingly
in this case the son was competent to be assessed as the Karta of his joint family.
9 AIR 1935 Bom 412 [Dr. Paras Diwan, Hindu Law, 2nd edition].

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2. C.G.T. v. B.K. Sampangiram10

A joint family consists of male members descended lineally from a common male ancestor,
together with their mothers, wives or widows and unmarried daughters bound together by the
fundamental principle of spindaship or family relationship which is the essence and
distinguishing feature of the institution. HUF signifies that all its members are Hindus or in
other words Hindu law applies to the family.
The SC in Surjit lal Chhabra v. CIT,11 again said: The expression Hindi undivided family
finds reference in the provisions of the Income Tax Act but that expression is not defined in
the Act. The reason of the omission evidently is that the expression has a well-known
connotation under Hindu law and being aware of it, the Legislature did not want to define the
expression separately in the Act. Therefore, the expression Hindu undivided family must be
construed in the sense in which it is understood under the Hindu law. A joint Hindu family
under the Dayabhaga is, like a Mitakshara family, normally joint in food, worship and estate.
In both systems, joint acquisition and of self-acquisitions thrown into the common stock. In
fact, whatever be the school of Hindu law by which a person is governed, the basic concept
of an HUF in sense of who can be its members is almost the same.
It may be emphasised that the purpose of assessment of tax, the revenue status use the
expression Hindu Undivided Family. For instance, for the purpose of revenue statutes, there
can be an undivided family consisting of a man, his wife and daughters or even of two
widows of coparceners. This definition is meant solely for the purpose of determining in
which category the income should be assessed. A single male or female cannot make a Hindu
joint family even if the assets are essentially ancestral.

10 (1986) 160 ITR 188 (Kar) [Dr. Paras Diwan, Hindu Law, 2nd edition].
11 (1975) 101 ITR 776 (SC) [Dr. Paras Diwan, Hindu law, 2nd edition].

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Conclusion
After the complication of the project, I come conclusion that Hindu Joint Family and Hindu
Undivided Family is same but in Hindu Undivided Family is different by the way of income
tax. And in both the family all the persons are living together (consists of all the male
members descended lineally from a common male ancestor together with their mothers,
wives or widow and unmarried daughters) and partition is also same.

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Bibliography

Dr. Saxena Pradhan Poonam, Family Law Lectures & II, 3rd Edition, 2011.
Dr. Diwan Paras, Hindu Law, Orient Publishing Company, 2nd edition, 2007.
Rao Subba G.C.V., Family Law in India, S. Gogia & Company, 10th Edition, 2012.
Maynes, Hindu Law & Usage, Bharat Law House, 16th Edition, 2012.