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CATEGORISATION OF PROPERTIES
Under Hindu law, the property that a Hindu male may possess, can be of two types: his
acquisition in his individual capacity, that can be described as his exclusively owned or separate
property, and a share in the joint family property or coparcenary property, that he holds with
other members of the family.

SEPRATE PROPERTY:
Property which is not joint is called separate or self-acquired property. The word ‘separate’
suggests that the family was formerly joint but has now become separate. When a member
separates from joint family, the property which he acquires will be treated as his separate
property vis-a-vis his relations with his brothers, but so far his sons are concerned it would be
regarded as joint family property.1

He can sell it, mortgage it, gift it, bequeath it under a will to anyone, or donate it for religious or
charitable purposes or for public benefit in general. He can even gift it to his sons, in equal or
unequal shares or to just one son to the exclusion of all others or to any other family member. No
one can ask for his partition or control its disposal in any manner

Incidents of Separate Property:

Separate property has five basic features:

a) Every Hindu can own a separate property. It is not necessary that he she must be a
member of a Hindu joint family. Even a single individual, male or female, can possess
separate property.
b) The owner enjoys an absolute ownership over the property, with absolute powers over its
disposal, inter vivos or through will. No one else can either claim any right of partition or
ownership or possession over it , including even the son of the owner, without his
consent.
c) In the separate property, the owner alone has the right to possess and enjoy it. Thus, no
one else can claim to have a right to possess and enjoy it without the permission of the
title holder.
d) On the death of the owner, separate property of a person goes by inheritance or intestate
succession or by testamentary succession in case he dies after making a will. The doctrine
of survivorship does not apply to a property at all.
e) The separate property of a person can be converted into coparcenary property by a
coparcener, without the consent of other coparceners, by a voluntary and intentional act
1
Separate Property, available at: http://www.shareyouressays.com/knowledge/what-are-the-different-classes-of-
property-under-hindu-law/117745 (visite on April 03)
 of throwing in the property into the common, joint family stock. The only requirement is
that the intention for such blending must be clear. A female in general, is incapable of
throwing in her properties into the joint family pool, but it has been held that she can
make a gift of her separate properties to the joint family as a whole, and in that case, the
property so gifted would become the coparcenary or joint family property.2

Acquisition of Separate Property:

Property that is acquired by a hindu in his individual capacity, without any detriment to the
joint Hindu family funds, would be his separate property. It would include the following:

a) Property acquired through his learning or special skills;

b) Property acquired by way of a prize or scholarship;
c) Inheritance by way of am obstructed heritage;
d) Property gifted or bequeathed to him by any person, whomsoever he/she may be,
unless the donor or testator expressly makes it coparcenary property;
e) Government grants, where again, a contrary intention is not manifested;
f) Property acquired through adverse possession;
g) Salary and remuneration received in a job or an avocation;
h) Property inherited from any relation other than the father, father’s father or father’s
father’s father (pre-1956); and
i) Property that cannot be called coparcenary property due to any reason whatsoever.

Property acquired by a Hindu in any of the following ways is his self-acquired or separate
property even though he be a member of a joint Hindu family:—

(1) Property acquired by a Hindu by his own exertion would be his separate property as it is
not the result of any joint labour with the other members of the joint family, provided it is
obtained without detriment to joint family property. Where a person has acquired any
property by way of adverse possession after remaining in its possession adversely for a
period of twelve years it would be treated as his self-acquired property not a joint
property.
(2) Where a member of joint family carries on a business of medical practitioner in Ayurveda
medicines and thereby earns heavy sum of money and gives loan on mortgage, thus
accumulating further income, all the earnings and the property thus acquired by him
would be his separate property.
Recently in Maklian Singh v. Kulwant Singh,3 Supreme Court observed that if a male
member of the Joint Hindu Family purchased the property by his own incomes like salary
income, such property is his self-acquired property. Such property inherits his heir by
succession. It could not be said to be the property of Joint Hindu Family.

2
Dr. Poonam Pradhan Saxena, Family Law 2, Page no. 105, (Lexis Nexis, Butterworts Wadhwa, Nagpur ( 3 rd edition)
3
Maklian Singh V. Kulwant Singh, Appeal (civil) 4446 (2005)
 (3) Property inherited by a Hindu from any person other than his father, grandfather or great
grandfather would be his separate property. Where a person earns money from the
practice of a hereditary profession like the hereditary priest, it will not be regarded as his
joint family property but on the other hand his separate property.
In Madan Lal Phul Chand Jain v. State of Maharashtra4, the Court held that a Hindu
can own separate property besides having a share in ancestral property. Where any
member of joint family inherited land left by his uncle that property came to him as a
separate property and he had an absolute and unfettered right to dispose of that property
in the manner he liked. Thus property inherited by a person from collaterals such as
brother, uncle etc. cannot be said to be ancestral property and his son cannot claim a
share therein as if it were ancestral property. On the death of a brother issueless, the
property inherited by a person would be his separate property.
Any property obtained by a Hindu as his share of partition of a joint Hindu family,
provided he has no male issue, shall be treated his separate property. Where a Hindu
makes some acquisitions after partition with the help of his share in joint family property,
that property shall be regarded as his separate property.
(4) Any 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, will be regarded as his
separate property.
(5) Property obtained by a Hindu by a gift or will unless made by his father, father’s father
or father’s father’s father for the benefit of the family and not exclusively for himself,
would be his separate property.
(6) Property obtained by gift of ancestral property made by the father through affection, will
be his separate property.
(7) Property obtained by a Hindu by grant from the Government shall be regarded as
separate property.
(8) Joint family property lost to the joint family and subsequently recovered by a member
thereof without the assistance of joint funds from a stranger holding adversely to the
family property shall be regarded as his separate property.
(9) Gains of Learning: Any income earned by a member of joint family substantially by
means of his education or specialization, expertise or special intelligence would be
regarded as his separate property. Where a member of joint family acquires some
knowledge or specialization after getting the education at the cost of joint family fund
and later on earns a considerable sum, whether that sum will be treated as his separate
property or joint family property, became a controversial issue.

In order to bring the controversy to an end the Hindu Gains of Learning Act, 1930 was
passed. The Act provided that no gams of learning shall be held not to be the exclusive
and separate property of the acquirer merely by reasons of learning having been imparted

4
Madan Lal Phul Chand Jain v. State of Maharashtra, 1992 AIR 1254
 to him by any member of his family or with the aid of the joint funds of the family or
with the aid of the funds of any member.

JOINT FAMILY PROPERTY:

The Joint family property is the most important aspect of law of the Hindu joint family. The
Hindu joint family is like a big reservoir into which property flows in from various sources and
from which all members of the joint family draw out to fulfill multifarious need. Joint-family
property or coparcenary property signifies the property in which all the coparceners have
community of interest and unity of possession. Such property consists of—

(a) Ancestral property;

(b) Property jointly acquired by the members of the joint family;
I Separate property of a member “thrown into the common stock”;
(d) Property acquired by all or any of the coparcener with the aid of joint family funds.

A. Ancestral Property:
Joint family ancestral property has two characteristics:
a) It is a joint family property and;
b) It is ancestral.
The term ‘ancestral’ denotes that the property had come to the joint family from ancestors, hence
it signifies the pre-existence of the property within the family, or with the ancestor of the family
and with reference to Hindu Law two things become important, viz.
a) Who was ancestor
b) What was the mode of devolution of the property from this ancestor to the joint family
members.
The term ancestor, here, is not used in a general or broad sense, but refers to three immediate
paternal ancestors in a whole male line i.e., father, grandfather (father’s father) and great grand-
father (father’s father’s father). With respect to the devolution of this property generally
speaking, where the property comes to the joint family by inheritance from these three ancestors,
or even in some cases by will, it will be termed as a ancestral property.

COPARCENARY PROPERTY:
The joint family property and the joint family ancestral property is collectively or individually,
called ‘coparcenary Property’. Where property has been acquired by the members of joint Hindu
family by their joint labour whether in business, profession or vocation, with the aid of joint
family property, it becomes joint family or coparcenary property. According to Bombay High
Court a property acquired by the joint labour of the members, even without the aid of joint
family funds, is presumed to be joint family property in absence of any indication of an intention
to the contrary.

Where two brothers acquired some property in a joint Hindu family by their joint efforts, in
absence of an intention to the contrary it would be presumed to be joint property and their male
descendants would acquire an interest in that property by birth.

Heritage and its classification under Mitakshara Law:

The Mitakshara divides property into two classes, namely, Sapratibandha Daya Obstructed
heritage and Apratibandha Daya Unobstructed heritage.
Joint family or ancestral property in which the male issues, i.e., sons, grandsons and great
grandsons acquire an interest by birth is called “Apratibandha” or “Unobstructed heritage” while
separate or self-acquired property of-a person in which no right is acquired by birth, but such
right is acquired only on the death of the last owner is called “Sapratibandha Daya” or
“obstructed heritage”.
a) Obstructed Heritage: As noted above, the property to which right accrues not by birth
but on the death of last owner is called obstructed heritage. It is called obstructed because
the accrual of right to it is obstructed by the existence of the last owner. Thus the property
devolving on parents, brothers, nephews, uncles etc. upon the death of last owner, is
obstructed heritage.
These relatives do not have any vested interest by birth. Their right to it arises only on the
death of the last owner. In this way any property inherited by a male Hindu from relations
other than father, father’s father and father’s father’s father would be called obstructed
heritage.
Illustration: A inherited certain property from his brother who died issueless. The
inherited property in the hands of A will be an obstructed heritage for the sons of A. The
sons of A will inherit the property from A only after his death.
b) Unobstructed Heritage:
The property in which a person acquires an interest by birth is called unobstructed
heritage. It is called unobstructed because the accrual of the right to it is not obstructed by
the existence of the owner. Thus property inherited by a Hindu from his father, father’s
father and father’s father’s father is unobstructed heritage as regards his own male issues,
that is, his sons, son’s sons and son’s son’s son. This rights arises on account of their
birth in the family and the male descendants in whom the property vests, are called
coparceners. Thus the ancestral property in the hands of last male owner is unobstructed
heritage.
Illustration: A inherited certain property from his father. Two sons born to A, namely M
and N are coparceners with A. M and N will acquire an interest by birth in the ancestral
property possessed by A. Thus the property in the hands of A is unobstructed heritage, as
the existence of the father is no obstruction or impediment to his sons acquiring an
interest by birth in the property.5
5
Unobstructed Heritage, available at: http://www.shareyouressays.com/knowledge/mitakshara-classification-of-
property-obstructed-and-unobstrtucted-heritages/117744 , (last visted on April 05)
 Incidents of coparcenary property:
1. Only a coparcener can hold a coparcenary property. A Hindu female generally or
a non-coparcener male Hindu cannot own the property as coparcenary property.
Property in the hands of sole surviving coparcener, in the absence of female
members of the joint family, is analogous to his separate property.
2. Coparcenary property is jointly owned by the coparceners. There is collective
title, collective possession and collective rights of disposal over it. Therefore,
there is no general right in favour of coparcener to transfer it .
3. In the coparcenary property, the holder’s son, grandson (son of a son) and a great
grandson (son of a son of a son) acquire a right of ownership by birth and hence, a
right to ask for its partition and demarcation of their shares. An unauthorized
alienation of coparcenary property can be challenged by them in a court of law.
4. The coparcenary property is owned by the coparceners, but is enjoyed by not only
the coparceners, but also by the members of the joint family who are not its
owners. They have a right of maintenance, residence and of marriage expenses
etc.
5. Unlike separate property where the title and enjoyment vest in the same person, in
a coparcenary property, the title vests in the coparceners but the right of
enjoyment is with all the joint family members.
6. Unlike separate property, where the title, possession and enjoyment and right of
alienation vest in the same person, here the right of alienation of the complete
property can be exercised not merely by all the coparceners collectively but in
some specific situations by the karta/father only even without the consent of the
other coparceners.
7. On the death of the coparcener, his interest in the coparcenary property is taken
by the surviving coparceners under the doctrine of survivorship, and the laws of
inheritance do not apply. In the case of sole surviving coparceners, upon his
death, the property goes by inheritance, to his legal representatives.
8. Unlike separate property or exclusive property that cannot be explained by any
other description or character, whether it is seen with respect to the descendants of
the owner or by his collaterals or by strangers to the family, the coparcenary
property changes its character depending upon who the claimant is. A person
acquiring property from his male ancestors, hold the same as ancestral property
or joint family property, only with respect to lineal male descendants, and the
same property will be called his separate property if there are no lineal male
descendants, i.e., sons, grandsons (sons of sons) and great grandsons (sons of sons
of sons), and the claimant to the property are uncles, or collaterals etc., and on the
death of the holder of the property, it is only the above mentioned lineal male
descendants who are entitled to claim the benefit of the doctrine of survivorship
(only these descendants can ask for a partition of property during his lifetime). In
the absence of lineal male descendants, neither a right of partition, nor a right to
claim the property by survivorship on his death, is available to male collaterals.
The property goes by succession in such case
For example in fig. 1.1, a family consists of the father F, his brother Br, a son S and wife W and
a grandson S
F Br
 W S

SS

Fig.1.1

The father and his brother were seprated during the former’s lifetime. If the son had a son SS, the
properties in the hands of S, are ancestral property vis-à-vis SS, as SS can ask for its partition
during the lifetime of S and he will take the complete property on the death of S by survivorship,
but if SS dies before S and the character of property in the hands of S is seen with respect to Br,
it will be described as the separate property of S that would go on his death by inheritance, to his
nearest heir and would not pass by survivorship to his father or the brother, Br.

In Dipo v. Wassan Singh,6two brothers A and B, inherited the property from their Father and
separated by effecting a partition between themselves (see Fig.1.2). A had a daughter D and a
son S. On the death of A , his son S took the properties by survivorship. He later died without
leaving any male descendants, and his sister D, claimed the properties by succession.

A B

(Buta singh) S D (Dipo) Sons (claimants)

Fig.6.2

At the same time, the sons of B, i.e, sons of S’s paternal uncle took the possession of the
property on the ground that properties in the hands of S were ancestral property and in Punjab, a
female cannot own ancestral property. Accordingly, they contended that they were the rightful
owners of the property. The SC rejected their contention and held that the character of property
varies, depending upon who the claimant is. In the absence of any male issue of S, he held it
during his lifetime as a sole coparcener and its character with respect to both his sister as also the
sons of his paternal uncle, was that of a separate property and not that of an ancestral property.
On his death, the property was to go to the nearest heir in accordance with the laws of
inheritance, who in this case, happened to be the sister, and not to collaterals, who were remoter
heirs in her comparison.

ACUISATION OF COPARCENARY PROPERTY:

Property inherited from Ancestors (classical Hindu Law):

The property which is inherited up to three generations is referred to ancestral property. That is
the property descends from father, father’s father, and great grandfather. Any property inherited
other than the members/relations are known as separate property. Only male members have
rights over the ancestral property. The Hindu Succession Act, amended in 2005, allows women
6
Dipo v. Wassan Singh, AIR 1983 SC 846: (1983) 3 SCC 376
to enjoy equal rights to the property. Now women have the same right as men over the ancestral
property. Once the division/ partition happens, all members will get an equal share from the
property. 7

Property inherited from maternal grandfather:

According to Mitaskahara, this head is not necessary as under the oneshara property inherited
from any person other than the father, father’s father and father’s father’a father, is obstructed
heritage and there is no distinction whether the property is inherited from paternal uncle or
maternal uncle. But two privy council decisions have necessitated the classification. In
Venkayyama v. Venkataryyammamana,8 two brothers, members of joint family, inbherited
certain properties from their maternal grandfather. One of them died without a male issue and his
widow claim share by inheritance, while the other brother claimed it by survivorship. The Privy
Council held that it was a joint family property and passed by survivorship to the other brother.
In Maktul v. Manbhari ,9 a case under the Punjab Customary Law, the SC held that the property
inherited by a person from his maternal grandfather is not ancestral qua his descendants

Property inherited from any other relation:

It is settled by law that property inherited by a person from any other relations ( other than those
mention in (a) and (b) above) is not ancestral property. Such property is his Separate property
and his son does not take interest in it by birth.

Property obtained on partition :

When a coparcener partitions from the joint family and obtain his share of property, what will be
the character of this property ? In respect of his own son, son’s son and the son’s son’s son, it
will continue to be a joint family property but in respect of all others it will be his separate
property.

B C

BS BS1 CS CS1

Fig.1.3

It may be illustrated thus: A Coparcenary consists of A and his two sons Band C and if they
partition, the properties obtained by each will be his separate property. Even A’s share will be his

7
Acquisition of coparcenary property, available at: https://vakilsearch.com/advice/concept-ancestral-property/,
(last visited on 06 April)
8
Venkayyama v. Venkataryyammamana, (1902) 25 Mad. 678
9
Maktul v. Manbhari, (1958) S.C.J. 1268
separate property in the sense that his sons B and C have no interest, no birthright in it. But the
moment anyone of them gets a son, his share will again become the joint family property. This
will be so even if A gets another son D; A and D will constitute a new coparcenary In the State
of Maharashtra v. Narayan Rao,10 the SC held that on the death of the Karta, though his widow
would take a share by virtue of S.6, Hindu Succession Act, but that does not mean that family
stands divided till the widow takes away her share of members effecting a partition , tha family
will remain a joint family.

Character of property after severance of status:

Whenever a coparcener expresses his intention to partition, severance of status takes place. But
then does it also mean that the Hindu joint family property loses its character of joint family
property. There has been some confusion in this regard. The same now has been clarified by the
SC in Bhagwati P. Sulakhe v. Digamber Gopal Sukhale,11A.N. Sen J. Observed:

“the character of any joint family property does not change with 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 portioned among the co-sharers. By a
unilateral act, it is not open to the any members of the joint family property to convert any joint
family property into his personal property.”

Constitution of joint family:

Three brothers and their father constituted a joint family and on the death of father, the brothers
got sedparated in food , worship and in estate, but villages properties consisting of land and
house were still joint. It would charactercise existence of joint family. The fact that one of the
brothers acquired separate property could not be a ground to conclude that the three brothers did
not constitute Joint Hindu Family.

Property received in Gift: Under this head, the gift of the following properties may be
considered:

1. Gift of his self-acquired property by the father to son; and

2. Gift of a joint family property:

i) By father-karta, or

ii) By karta

Gift by father of self-acquired Property:

The question is, if father gives his self-acquired property, movable or immovable, by gift inter
vivos or by will to one of his sos, to the exclusion of others, whether, the son will take it as
10
State of Maharashtra v. Narayan Rao, 1985 S.C. 716.
11
Bhagwati P. Sulakhe v. Digamber Gopal Sukhale, 1986 SC 79
ancestral property. The difficulty arises on account of two principles of hindu law that came into
application:

i. Every Hindu has full power of disposal over his separate property

ii. When self-acquired property of Hindu devolves on his son by inheritance, the son
take it as ancestral property in which son has an interest by birth.

In accordance with the first principle, the father has the power of giving the property in gift. But,
can he,by changing the mode of devolution of property, change the character of the property? It
may be noted that if A who has three sons B,C and D, make a gift of his self-acquired property to
C to the exclusion of B and D, the question is not whether B and D can challenge it. They
obviously not. The question is : can C’s son claim an interest in it by birth ? Before 1953 there
was difference of opinions among our HC and as many as five views existed. But in 1953, the
SC in Arunachalam v. Murugantha,12 after considering the various texts and the various
decisions of High Courts, said that the answer to the question primarily depends upon the
intention of the father. The intention of the father is to be gathered from the terms of the deed. In
other words, if the father expressed a clear intention in the deed that the son will take it as his
separate property, or joint family property, the son will take it as accordingly. In case the father
has not expressed his intention clearly, then the intention is to be gathered from the language of
deed and the surrounding circumstances. This is not a very satisfactory test.it seems that if it is
shown that the so called gift was not a gift but an integral part of a scheme of partition , then the
done son will take the property as joint family property. It is submitted that the entire argument is
misconceived. It may be argued that had the father allowed it to devolve by inheritance, other
sons too would have got an interest in it and constituted a coparcenary. But the father did not
allow it to devolve that way and made a gift of it. Then why should we talk of one’s son’s claim,
and why should we also not talk of the claim of other sons of the donor? It is submitted that
simple rule should be that the done-son take it as his separate property, subject to any restrictions
that the father might have imposed on the gift.

Gift by a father of a small portion of joint family property:

It has been all along recognized that the father-karta has the power of making a gift of small
portion of movable joint family property as a gift of love and affection. A gift of love and
affection is made to a person with whom the father stands in the relation of love and affection,
such as wife, son, daughter and daughter-in-law. In every case , a gift has to be a small portion of
the joint family movable property. What is a small portion will depend upon the total quantum of
joint family property. Before 1964 the view was that father cannot give any portion of moveable
property in gift. But in 1964 the SC in Guramma v. Mallapa,13 said that the father can make a
gift of love and affection to a daughter of a small portion of immovable property, either at the
time of the marriage or subsequently, as gift to daughter is modern version of share in the joint
family property to which she is entitled in the ancient law. It has also been held in R.Kuppayee v.
Raja Gounder,14 that father can gift ancestral immovable property to his daughter within

12
Arunachalam v. Murugantha, 1953 S.C 495
13
Guramma v. Mallapa, 1964 S.C. 510
14
R.Kuppayee v. Raja Gounder, 2004 S.C. 1284
reasonable limits. This view is not correct as there is hardly any textual authority for this view. In
later cases the SC has confined the ration of their decision to the gift to daughter. Thus, it was
held that gift of immovable property could not be made to any other relation,not even to one’s
wife. In the hands of one such property is his separate property, unless given with limitations.

Gifts of joint family property by Karta:

It is an established rule of Hindu Law that the Karta of the Joint family , whether the father or
someone else, has the power to make a gift of ancestral immovable property as well as moveable
property within the reasonable limits in discharge of his religious duties or for pious purposes.
Such a gift can be inter vivos and not by will. In the hands of one the property will be separated
property.

Property jointly acquired by coparceners:

Where property has been acquired by the members of joint Hindu family by their joint labour
whether in business, profession or vocation, with the aid of joint family property, it becomes
joint family or coparcenary property. According to Bombay High Court a property acquired by
the joint labour of the members, even without the aid of joint family funds, is presumed to be
joint family property in absence of any indication of an intention to the contrary.

Where two brothers acquired some property in a joint Hindu family by their joint efforts, in
absence of an intention to the contrary it would be presumed to be joint property and their male
descendants would acquire an interest in that property by birth.

In Bhagwant P. Sulakhe v. Digambar Gopal Sulakhe, 15the Supreme Court 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 among 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.

In the above case, the remuneration received by two of the members of a joint family who
constituted a firm which was appointed as managing agent of a company, for acting as managing
agent of the company must be held to be the joint family property when the agreement of the
partnership indicated that the two family members became members of the firm which was
appointed the managing agent of the company, representing the joint family and for the benefit
of the joint family.

In Gumam Singh v. Pritam Singh & others. 16 The court further held that if property is acquired
by the fund of joint labour even if it was purchased from income derived from land which was

15
Bhagwant P. Sulakhe v. Digambar Gopal Sulakhe, 1986 SC 79.
16
Gumam Singh v. Pritam Singh & others , AIR 2010 (NOC) 983 (P&H)
taken on batai and cultivated jointly there would be presumption of jointness and property
would be treated as joint Hindu family coparcenary property.17

Income of hereditary professions:

The income of hereditary professions, such as of priest, constitutes joint family property.

Property exchanged for joint family property:

When some property is acquired in exchange of joint family property property, such property
will be joint family property.

Property thrown into the common stock:

Where any coparcener voluntarily throws his self-acquired property into the joint fund with the
intention of abandoning all separate claims to it, it would be joint property, so as to be divisible
among all the members. Such an intention need not be express, it is sufficient if the owner blends
it as one general account without discriminating between the two, in such a way that a clear
intention to waive his separate rights may be established.

When the head of a joint Mitakshara family kept only one account of ancestral and self-acquired
property and sued to amalgamate the funds, it was held that the self-acquired property became
joint property.

Blending is not done by the primary act of blending but it is possible only by deliberate and
intentional acts of the owners of the property. Such an act can be done by express words or by
express conduct of the parties. The act of blending is unilateral. When a member of joint family
mixes his property to a joint family property, he does not do the act of gift nor is it gift. There is
neither any donor nor one, nor does it attract the provisions of Transfer of Property Act.

In K. Abebul Reddy v. Venkata Narayan, the Supreme Court observed that once it is presumed
that the family is joint and it holds joint property it would be a legal presumption that the
property held by an individual member or by all the members is joint family property. If any
member claims his separate right over certain part of joint property the burden of proof would be
on him to prove that it was his separate property.

In Subrammania Reddi v. Venkatasubba Reddi, 18 the husband of daughter had brought in

certain properties which got blended with joint family properties; she had become widow and
was issueless. The main consideration to make a sort of family arrangement and therefore
property had been given to her.

The other family members themselves have treated certain items of properties as separate
properties. The partition effected on that basis, but the family members blending properties of

17
Jointly acquired property, available at: http://www.shareyouressays.com/knowledge/what-are-the-different-
classes-of-property-under-hindu-law/117745, (last visited on 08 April).
18
Subrammania Reddi v. Venkatasubba Reddi, AIR 1999 SC 1116
widow as joint Hindu property. The Supreme Court observed that properties inherited by widow
from his relations on his maternal side, cannot blended with property of joint family property.

Where joint family does have joint family property, the separate property of coparceners does
not convert into joint family property, although it is quite possible that the coparceners regard
their separate property as joint family property. He can permit the other coparceners to treat that
property as their property also.

Where the view is taken that separate or self-acquired property has been thrown into common
stock and one’s separate rights have been abandoned, these facts have to be established
expressly. A presumption to this effect cannot be drawn on the basis of mutual love and affection
of the coparceners.

In Lakireddi v. Lakireddi,19 the Supreme Court observed that the law relating to blending of
separate property with joint family property is well settled. Property separate or self-acquired of
a member of a joint Hindu family may be impressed with the character of a joint family property
if it is voluntarily thrown by the owner into the common stock with the intention of abandoning
his separate claim thereto, but to establish such abandonment a clear intention to waive separate
rights must be established.

From the mere facts that the other members of the family were allowed to use the property
jointly with himself, or that the income of the separate property was utilized out of generosity to
support persons whom the holder was not bound to support or from the failure to maintain
accounts, abandonment cannot be inferred, for an act of generosity or kindness will not
ordinarily be regarded as an admission of legal obligation.

In Pearey Lal v. Nanak Chand,20the Privy Council had laid down that where a son claims that a
business started by his father is a joint family business because he has been actively assisting in
its promotion, there the burden lies on him to establish that the business which was started in
absence of any financial assistance from ancestral property, was intended to be a joint family
business and it was earnestly regarded as such. Once it is established to be a joint family
business, its character will not change despite the change in the attitude of the father later.

Where a member of coparcenary voluntarily gives up his right in any property and mixes it with
joint property, it would be deemed to be joint property. Where he gives away his property in the
common stock it would become a part and parcel of the joint Hindu property and would not be
treated separately.

All the members of joint Hindu family cannot create joint property by throwing their money in
common stock. The property belonging to the coparceners only can create joint family property
by blending them into common stock. Such a right is not available to female members of the
joint family as they are not coparceners.

19
Lakireddi v. Lakireddi, 1963 S.C. 1601
20
Pearey Lal v. Nanak Chand, (1948) 50 BOMLR 643.
The doctrine is peculiar to Mitakshara school of Hindu law. When a coparcener throws his
separate property into the common stocks, he makes no gift under the Transfer of Property Act
and therefore it does not amount even to transfer.

Property Acquired With The Aid of Joint Family Funds:

Property acquired with the aid and assistance of joint family property is also joint. Thus,
accumulation of income, i.e., rent etc. of joint family property, property purchased out of such
income, the proceeds of sale or mortgage of such property and property purchased out of such
proceeds are also joint family property.

Where in a joint Hindu family some property is purchased in the name of one of its members, it
will be regarded as a joint family property not his own separate property. If he has acquired any
property without the help of joint family property it could be treated as his separate property.
Where any member of joint family blends his self-acquired property into common property of
the family or joint family property, it all becomes joint property.

Where the Karta of joint family purchases any property in his name and does not assert that joint
family property was inadequate to purchase that property, there the burden of proof is on him to
establish that the property was purchased by his own separate property. In absence of such proof,
it would be presumed, that the property was purchased out of joint family property and that
would be regarded as joint family property.

In D. Latchandora v. Chinnabadu, the Court held that where certain property is given to a
member of joint Hindu family in order to meet the expenses of his maintenance and he acquires
some other property out of the income from that property, in that case all the properties thus
acquired by him would become his separate property. But in a case from Madras High Court, it
was held that all the property thus acquired by him would be regarded as joint family property in
the context of his sons.

In Smt. Parbatia Devi v. Mst. Sakuntala Devi,21 the Patna High Court held that 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 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.

In Satchidananda Samanta v. Ranjana Kumar Basil,22 the Court held that a business run by
coparcener on joint property need not always be joint family business. In Dayabhag coparcenary
one coparcener started cinema business on joint family property with the consent of other
coparceners.

21
Smt. Parbatia Devi v. Mst. Sakuntala Devi, AIR 1970 All 238
22
Satchidananda Samanta v. Ranjana Kumar Basil, AIR 1992 Cal 222.
The other coparceners did not contribute capital in it. The cinema licence was obtained only in
the name of one coparcener. Evidence on record showed that the grant of cinema licence was not
opposed by other coparcener. It was held that the cinema business was not family business
merely because it was run on joint property.

Salary and Remunerations:

Where a member of joint family makes acquisition with the aid of any part of joint family
property, it cannot be his separate earning nor can it be said to be his separate property simply on
account of the fact that such acquisition was made by him by applying his own wisdom or skill.
In Palanippa v. Commissioner of Income-tax23.The Supreme Court observed that where no part
of the family funds had been spent to enable the Karta to earn remuneration of managing director
and the family funds had been invested to obtain dividends and other advantages of being
shareholders, the salary, commission and sitting fees of Karta as managing director shall remain
his personal property.

In Dhanwantary v. Commissioner of Income Tax24, the Court held that the salary earned by a
coparcener as partner constituted joint family property. Where the coparceners invested joint
family assests in partnership and it was agreed that the profits earned in partnership were to be
taken as personal salary of each coparcener, the salary which the manager earned on account of
his personal skill and labour was held to be as a part of joint family property.

On the other hand in Commissioner of Income-tax v. D.C. Shah25, the Supreme Court held that
the salary given to a coparcener as partner on account of his special skill and experience
constituted his self-acquired property, even though the family has contributed a large parts of its
capital to the firm.

Where the security is given out of joint family property for the appointment of Karta of joint
family on the post of a manager in an industry, the court held that the salary and remuneration
earned by the Karta will still be regarded his separate property of Karta.

In Bhagwantji Sulakhe v. Digambar Gopal Sulakhe26, the Court observed: Where a coparcener
has been appointed as a managing director of a company the remuneration earned by the
coparcener will be regarded his separate property irrespective of the fact that a few shares of the
company were purchased out of joint family property to enable him to become the managing
director.

Where the premium of the insurance policy of a coparcener is deposited out of joint family fund,
the benefit earned by him would be his separate property not the joint family property.

23
Palanippa v. Commissioner of Income-tax , 1968 AIR 678, 1968 SCR (2) 55
24
Dhanwantary v. Commissioner of Income Tax, 1968 AIR 682
25
in Commissioner of Income-tax v. D.C. Shah 1969 AIR 927, 1969 SCR (3) 586
26
Bhagwantji Sulakhe v. Digambar Gopal Sulakhe [1986 (1) SCC 366, 384-385= AIR 1986 SC 79] (11),
In Sidrammappa v. Babajappa27, the Mysore High Court observed that if the father has taken an
insurance policy in the name of the son and paid the premiums thereof out of love and affection,
then the benefits of the policy will belong to the son and constitute his separate property.

Similar view was taken by the Andhra Pradesh High Court in Narayanlal v. Controller of Estate
duty28. The Supreme Court in Prabhavati v. Sarangdhar observed: “There is no proposition of
law by which the insurance policies must be regarded as the separate property of the coparceners
on whose lives the insurance is effected by the coparcenary.” If the insurance policy were taken
with any detriment to the joint family funds, then anything obtained thereby would belong to the
joint family.

In Chandra Kant Mani Lai Shah v. Income Tax Commissioner29, the Supreme Court laid down
a new proposition by saying that a partnership firm can be constituted between the Karta and
undivided member of Hindu undivided family. It is not necessary that such undivided member
should contribute cash assets to become partner in the firm. When an individual in place of cash
asset contributes his skill and labour in consideration of a share in the profits of the firm he can
become a partner in the firm.

In such cases when a coparcener contributes his skill and labour while entering into partnership
with the Karta of Hindu undivided family, it cannot be said that he has not made contribution of
any separate asset to meet the requirement of a valid partnership. The profit thus earned by that
coparcener would not constitute the property of the joint family but would be the separate
property of the individual coparcener concerned.

In K.S. Subbiah Pillai v. Commissioner of Income Tax30, the remuneration and commission was
received by the Karta of the family. The tribunal had held that the remuneration and commission
received by the Karta of the joint Hindu family where earned by him on account of his personal
qualifications and exertions and not on account of the investment of the family funds in the
company, therefore it could not be treated as the income of H.U.F. In this case the Supreme
Court also observed that the decision given by tribunal is correct.

27
Sidrammappa v. Babajappa, AIR 1962 Kant 38, AIR 1962 Mys 38
28
Narayanlal v. Controller of Estate duty, AIR 1969 AP 188, 1968 68 ITR 849 AP
29
Chandra Kant Mani Lai Shah v. Income Tax Commissioner, 992 AIR 66, 1991 SCR Supl. (1) 546
30
K.S. Subbiah Pillai v. Commissioner of Income Tax, 1984 147 ITR 87 Mad.