Introduction: Joint Hindu Family
A family that originates from one common male ancestor who may be alive or dead after whom there has not been any partition in the family will be called as a Joint Hindu Family. As there is no partition in the family it is called JHF excepting daughter who got married somewhere else and now they have become a member of the husband’s JHF. Before the 2005 amendment the only divorcee was considered part of JHF of her father but after 2005 both the divorcee and the widow are considered to be part of JHF of her father.
All the unmarried adopted members will be considered as members of JHF. Generally, a JHF consists of the common male ancestor, his wife, all his lineal descendants together with their wives, widows, unmarried daughters, and also the daughters of male descendants. The existence of a common male ancestor is necessary for bringing a joint family into existence, but for its continuance, the common male ancestor doesn’t need to be alive. When such a common male ancestor dies the JHF continues and can continue till perpetuity. All the members in the JHF do not have equal rights in the family property. The coparceners have an interest in the coparcenary property while the females and the male members other than the coparceners have a right of maintenance and a right of residence in the JHF i.e. they are the dependants.
In case there is a partition among the coparceners in a JHF, the JHF comes to an end, and thereafter from another common male ancestor, there will be a creation of new JHF. Therefore, the test is to see when the last partition happened. Food, shelter, and worship can be separated under a family arrangement to avoid any trouble in the family and the fact that they have been separated in food, shelter, and worship would not amount to a partition in the family as long as they remain joint in the property. The main criteria are the jointness of the property and the main test is the intention of the Karta.
The test is the intention of the Karta in the family whether he intended to separate the members to void any trouble or he intended to partition i.e. if the intention was to partition then there should have been a partition of the joint property. An important thing to note here is that even if the JFP went still family would remain joint as it is the creation of the law and can only be dissolved by partition. Status of joint family membership is lost by conversion to non-Hindu faith or marriage to a non-Hindu under Special Marriage Act, 1954, and on the partition.
COPARCENARY
The primary purpose of understanding the concept of coparcenary is to determine the group of persons who can offer spiritual ministrations to the family or their forefathers (Pind-dan). The senior-most among the coparceners is called a last male holder of the property and it is from him a continuous chain of 4 generations of coparceners i.e. those who have a birthright in the family joint property form a coparcenary. A coparcenary can consist of grandfather and grandsons of brothers, uncles and nephews, and so on. The rule is that so long as one is not removed by more than 4 degrees, one will be a coparcener. It is a much-narrowed body in comparison to the JHF. The 3 generations next to the holder of ancestral property in unbroken male descent are included under coparcenary. It is based upon the birthright. Daughters although they were part of JHF after 2005 amendment daughters are also included under the term coparceners.
Property inherited by a Hindu from his father, father’s father or father’s father’s father is termed as ancestral property. The essential feature of ancestral property is that if the person inheriting it as a son, son’s son or son’s son’s son they become joint coparceners with the last male holder of the property.
The community of interest and unity of possession is and the essence of coparcenary – communal ownership here means that no individual member can say that this is mine or that item of property belongs to me. What he can say is “this is ours” the moment a person is born in the family, he acquires an interest, in the sense that he has a right of joint ownership and right to common enjoyment and common use of all properties, because, by being born a son, he becomes a member of the community. A coparcener can get his interest in the joint family property “individualized” – this can be done by a partition, but the moment a son is born to him, it again becomes communal property.
SURVIVORSHIP
When one coparcener dies the property devolves on the remaining coparceners. The rule of survivorship finds its bases in the concept of fluctuating interest. The coparcener’s shares are never fixed. It fluctuates with a change in life i.e. births and deaths in the family. Until partition is claimed in the share, the shares are never fixed and the actual share of a coparcener is spec-succession. As per the personal laws of the Hindus and Hindu Succession Act, 1956 whenever the member of a coparcenary dies leaving behind the joint family property, the surviving coparceners will remain the joint owners of that property and the coparcenary status between them will continue concerning their property. This is called the doctrine of survivorship.
Since before 2005 amendment, only the male members were the coparceners, the doctrine of survivorship was applicable upon such male members but only in that case if the deceased had not left surviving a female member specified in class 1 of the schedule or a male relative specified in that class who claims through such female as in that case property would devolve either by testamentary or intestate succession as per the 1956 Act.