Property under Mitakshara Law: Separate and Coparcenary
Chapter Forty-One
Syllabus topic 2.2, "Property under Mitakshara law, separate property and coparcenary property"
Pages 248 to 253 of 477
In one line
Property is either coparcenary property, in which every coparcener has an interest by birth, or a member's separate property, which is his alone; and the whole of the module is about telling them apart.
The two classes
Mitakshara law divides all the property a member of a joint family may hold into two.
Coparcenary property, also called joint family property. Every coparcener takes an interest in it by birth. No coparcener owns a defined share. It is subject to partition, to the karta's power of management and alienation, and, before 2005, to survivorship.
Separate property, also called self-acquired property. It belongs to one member absolutely. He may sell it, gift it or will it away as he pleases; no coparcener may object; and on his death it passes by succession, not by survivorship.
The whole of the rest of this chapter is the list of what falls into each.
What is coparcenary property
1. Ancestral property
This is the core case and it is the one MU asks about.
Ancestral property means property inherited by a Hindu male from his father, father's father or father's father's father. In his hands it is joint family property as regards his own sons, grandsons and great-grandsons, who take an interest in it by birth.
Three traps, and they are all in that sentence.
"Ancestral" is a term of art, not ordinary English. Property inherited from a maternal grandfather, from a brother, from an uncle, or from any collateral, is not ancestral property. It is the separate property of the person who inherits it, and his sons take no interest in it by birth. Only the three direct male ancestors count.
It is ancestral as regards the descendants, not as regards the holder. A man who inherits from his father holds it as his own vis-a-vis his brothers if they have separated, but as joint family property vis-a-vis his own sons. The same property can be self-acquired in one relation and ancestral in another.
The character passes to four degrees only. The son, grandson and great-grandson take by birth. Beyond that the reckoning restarts.
This is also the distinction between apratibandha daya and sapratibandha daya, unobstructed and obstructed heritage, described in [The Sources and the Schools of Hindu Law]. Property from the three direct male ancestors is unobstructed: the right arises at birth. Property from anyone else is obstructed: the right arises only on the owner's death.
2. Property acquired by the joint family
Property acquired with joint family funds, or by the joint labour of the members, or in the name of one member out of the family nucleus, is coparcenary property whatever the deed says. This is where the presumption in [The Mitakshara Joint Family] does its work: once a sufficient nucleus is proved, the burden lies on the member claiming the property as his own.
Property under Mitakshara Law: Separate and Coparcenary
3. Property thrown into the common stock
A member may voluntarily surrender his separate property to the joint family, and it then becomes coparcenary property. This is called blending, or throwing into the hotchpot.
Two conditions, and both are strict. There must be an intention to abandon the separate character, and it must be clearly proved. Merely allowing the family to use the property, or managing it along with the family property, or letting the income go into a common account, is not blending. The doctrine takes property away from its owner, so the law requires the intention to be unequivocal.
And blending works only one way. Coparcenary property cannot be converted into separate property except by partition.
4. Accretions
Property acquired with the income of coparcenary property, and anything that accrues to it, is itself coparcenary property. So a house built out of the rents of ancestral land is ancestral in character.
5. Property recovered with the help of joint funds
Where joint family property is lost and recovered by a member, it is coparcenary property; and where he recovered it with the aid of joint family funds, it remains so even if he did the work alone.
What is separate property
1. Property inherited from anyone other than the three direct male ancestors
As explained above.
2. Property obtained on partition
The share a coparcener takes on partition is his separate property as against his brothers, but it becomes ancestral property as regards his own sons, who acquire an interest in it by birth. This is the point that most often decides a problem question, and it should be stated in exactly those two halves.
Where the coparcener has no son at the date of partition, the share is his absolutely, and it is only when a son is born that it takes on the ancestral character.
3. Property acquired without help from the joint funds
Acquired by his own exertions, without detriment to the joint estate and without any aid from it.
4. Gifts and bequests
Property received by gift or will is separate property, unless the donor or testator has expressed a contrary intention. A father may gift ancestral property to a son and direct that it be taken as ancestral, but the presumption is the other way.
The classical rule made an exception for a gift by a father to a son out of affection, which was sometimes treated as ancestral; the modern position is that the donor's intention governs, and where nothing is said the gift is separate property.
Property under Mitakshara Law: Separate and Coparcenary
5. Property obtained by a gift of love and affection from the father
A father may make a gift of a reasonable portion of the ancestral moveable property to a son out of affection, and what he gives becomes the son's separate property. The gift must be reasonable in extent, which is what stops the doctrine defeating the coparcenary.
6. Government grants
Property granted by the Government to a member is his separate property, unless the grant says otherwise.
7. Gains of learning
This is the class the syllabus expressly names, and it is now statutory.
The classical law was in doubt. Where a member's education had been paid for out of joint family funds, or he had been maintained by the family while he studied, his earnings were often held to belong to the family, on the reasoning that the family had financed the skill that produced them. A doctor educated on the family's money was working for the family.
The Hindu Gains of Learning Act 1930, Act 30 of 1930, of 25 July 1930, was passed, in its own words, to remove doubt and provide a uniform rule as to the rights of a member of a Hindu undivided family in property acquired by him by means of his learning.
Section 2 defines the three words. "Learning" means education, whether elementary, technical, scientific, special or general, and training of every kind usually intended to enable a person to pursue any trade, industry, profession or avocation. "Gains of learning" means all acquisitions of property made substantially by means of learning, whether before or after the Act, and whether the ordinary or the extraordinary result of that learning. "Acquirer" means the member who acquires them.
Section 3 is the operative provision. Notwithstanding any custom, rule or interpretation of Hindu law, no gains of learning shall be held not to be the exclusive and separate property of the acquirer merely by reason of:
(a) his learning having been imparted to him, in whole or in part, by any member of his family living or dead, or with the aid of the joint funds of his family, or with the funds of any member; or
(b) himself or his family having been maintained or supported, wholly or in part, by the joint funds of the family or of any member, while he was acquiring his learning.
Read the definitions carefully, because the Act is wider than students expect.
"Learning" includes training of every kind, not only formal education, so a member trained in a trade is within the Act.
Property under Mitakshara Law: Separate and Coparcenary
"Whether the ordinary or the extraordinary result." A doctor's fees are the ordinary result of his learning; a prize, a patent or an unexpected windfall from that learning is the extraordinary result. Both are his.
The Act removes a reason, it does not create a rule. Section 3 says the gains shall not be held to be joint merely by reason of the family having paid for the learning or maintained him. If the property is joint for some other reason, for example because it was in fact bought with joint funds, the Act does not save it.
The classes in one table
| Property | Character |
|---|---|
| Inherited from father, father's father, father's father's father | Coparcenary, as regards his own descendants |
| Inherited from a maternal grandfather, brother, uncle, any collateral | Separate |
| Acquired with joint family funds or by joint labour | Coparcenary |
| Voluntarily blended with joint property, on clear proof of intention | Coparcenary |
| Income of, and accretions to, coparcenary property | Coparcenary |
| A share taken on partition | Separate as against brothers, coparcenary as regards his own sons |
| Acquired by his own exertions without aid from the joint estate | Separate |
| Gift or bequest, unless a contrary intention | Separate |
| A reasonable gift of affection from the father | Separate |
| Government grant, unless it says otherwise | Separate |
| Gains of learning, Act of 1930 | Separate |
A worked example
Suresh inherits a field from his father, a house from his mother's father, and a shop from his childless paternal uncle. He is an engineer and earns a salary; the family paid his college fees and kept him while he studied. He also received a plot as a wedding gift from a friend, and he took a share on partition with his brother. He has one son.
The field. Property inherited from the father, father's father or father's father's father is ancestral, and it is joint as regards his own descendants for four degrees. His son takes an interest in it by birth.
The house from the maternal grandfather. Not ancestral at all. Property from a maternal grandfather is the taker's separate property.
The shop from the uncle. Property inherited from a collateral is likewise separate.
The salary. Separate. And the Hindu Gains of Learning Act 1930 puts it beyond argument: gains of learning are not held to be joint merely because the family paid for the education or maintained him while he acquired it, and "learning" covers training of every kind and "gains" the extraordinary as well as the ordinary result.
The wedding gift. A gift is separate property, whoever gave it.
The share on partition. It is separate as against his brother, and ancestral as regards his own son, who takes an interest in it by birth.
Property under Mitakshara Law: Separate and Coparcenary
Suppose he throws the shop into the common stock. Property clearly blended into the joint family stock becomes coparcenary, and the intention must be clear; mere use by the family is not enough.
Suppose the field's income buys shares in his name. Accretions to coparcenary property, and acquisitions made with its aid, are coparcenary.
What it does NOT mean
Ancestral is not "old". It means property inherited from the father, father's father or father's father's father, and nothing else.
Inherited property is not always ancestral. Property from a maternal grandfather or from a collateral is separate.
A share on partition is not simply separate. It is separate against the co-sharers and ancestral for the taker's own sons.
Blending is not use. The property must be clearly thrown into the common stock with the intention of abandoning separate rights.
Self-acquisition is not proved by the name on the document. What matters is whether it was made without aid from the joint estate.
The Act of 1930 does not make every earning separate. It removes one reason for calling gains of learning joint: that the family paid for the education or maintained the member.
Quick revision
- Two classes: coparcenary (joint family) property and separate property.
- Coparcenary property includes ancestral property, that is, property inherited from the father, father's father or father's father's father, joint as regards descendants for four degrees; property acquired with the aid of joint funds; joint labour; accretions; and property blended into the common stock.
- Separate property includes property inherited from a maternal grandfather or a collateral; self-acquisition without aid from the estate; gifts and bequests; government grants; gains of learning; and a share taken on partition, which is separate against the co-sharers but ancestral for the taker's sons.
- The Hindu Gains of Learning Act 1930: gains of learning are not joint merely because the family paid for the education or maintained the member; learning includes training of every kind; gains include the extraordinary as well as the ordinary result.
Test yourself
1. What is ancestral property? Property which a Hindu male inherits from his father, father's father or father's father's father. It is joint family property as regards his own descendants for four degrees, who take an interest in it by birth.
2. Is property inherited from a maternal grandfather ancestral? No. It is the separate property of the person who inherits it, as is property inherited from a collateral such as an uncle or a brother.
3. What is the character of a share taken on partition? It is separate property as against the coparceners with whom the partition was made, and ancestral property as regards the taker's own sons, who take an interest in it by birth.
Property under Mitakshara Law: Separate and Coparcenary
4. What did the Hindu Gains of Learning Act 1930 provide? That no gains of learning shall be held to be joint family property merely by reason that the person acquiring them was maintained or educated by the joint family, or that the education was paid for out of joint family funds. "Learning" includes education, whether elementary, technical, scientific, special or general, and training of every kind which is usually intended to enable a person to pursue any trade, industry, profession or avocation in life; and "gains of learning" includes all acquisitions of property made substantially by means of learning, whether ordinary or extraordinary.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.