Explain the position, power and duties of a coparcener/ what is coparcener property.

The Joint family of Hindu Law is an institution sue generis. It is peculiar to Hindu society. It consists a
male, his wife and unmarried daughters and his male descendants, their wives and unmarried
daughters. It is Thus patriarchal in character. Inside this joint family there is what called the
Coparcenary. The coparceners are the owners of the joint family property. The coparceners have the
right of partition in that property.

Coparcenary consists of common ancestor and three degrees of male lineal descendants.

Who are coparceners ?

Coparceners are those who have interest by birth in the joint family property. In the ancestral
property of a male his son, grandson and great grandson have an interest by Birth.

Example : A→B1→B2→B3→B4→

If A dies B4 is added so on. To begun with the Coparcenary father and son relationship is
necessary and for its continuation father's presence is not necessary.

Coparcenary Property :

There are two schools of law relating to coparcener and coparcenary property. they are Mistakshara
and Dayabhaga School. The coparcenary property, according to Mistakshara is that in which every
coparcener has joint interest and joint possession. According to Hindu law, property can be divided
into i) joint family property and ii) separate property. It may be noted that the term “joint family
property” and “coparcenary property” means the same thing. Further property which is jointly
acquired with the aid of ancestral property is also joint family property. Coparcenary property
consist of the following – a) ancestral property, b) property jointly acquired and c) property acquired
with the aid of joint family funds.

The following are the fourteen main rights of a coparcener:

1. Community of interest and unity of possession:

No coparcener is entitled to exclusive possession of any part of the coparcenary property; nor is any
coparcener entitled to any special interest in such property.

As observed by the Privy Council in Katama Natchairv. Rajah of Shivagunga (1893 9 M.I.A. 539),
“there is community of interest and unity of possession between all the members of the family”.

2. Share of Income:

A member of a joint family cannot, at any given moment, predicate what his share in the joint family
property is. Such a share becomes defined only when a partition takes place. The reason is that his
share is a fluctuating one, which is liable to be increased by deaths, and diminished by births, in the
family. It follows from this that no member is also entitled to any definite share of the income of the
property.

According to the principles governing a Hindu undivided family, the whole income of the joint family
property must be brought to the common purse of the family, and then dealt with as per the rights
of the members to enjoy such property.
3. Joint possession and enjoyment:

Each coparcener is entitled to joint possession and enjoyment of the family property. If he is
excluded from doing so, he can enforce this right by way of a suit. He is not, however, bound to sue
for partition. In a suit for joint possession, the Court would declare his right to joint possession, and
further direct that he should be put into such joint possession.

4. Right against exclusion from joint family property:

If a coparcener is excluded by other coparceners from the use or enjoyment of the joint property,
the Court may, by an injunction, restrain such coparceners from obstructing him in the enjoyment of
the property.

In one case, A and В were members of a joint family. A prevented В from using a door which was the
only means of access to the rooms which were in B’s occupation. It was held that, in the
circumstances, the Court could, by injunction, restrain A from disturbing В in the use of the door.
(Anani v. Gopal, 1895, 19 Bom. 269)

In another case, A and В were members of a joint family, which owned a shop in Poona. A prevented
В from entering the shop, inspecting the account books, and taking part in the general management
of the shop. В sued A for an injunction, restraining A from excluding В from the joint possession and
management of the shop, and the Bombay High Court held that В was entitled to succeed. (Ganpat
v. Annaji, 1899 23 Bom. 144)

5. Right of maintenance and other necessary expenses:

Every coparcener is entitled to be maintained out of the estate of the family. For this purpose, he is
entitled to receive, from the coparcenary property, maintenance for himself, his wife and children,
as also for those whom he is bound to maintain. Besides such maintenance, a coparcener is also
entitled to get money from the coparcenary property for the purpose of the marriage of his children
and for the performance of the sradha and upanayana ceremonies.

6. Right to restrain improper acts:

Every coparcener has the right to restrain improper acts on the part of other coparceners, where
such acts cause substantial injury to his rights as a member of the family. Thus, if a coparcener erects
a building on land belonging to the joint family, so as to materially alter the condition of the
property, he may be restrained by an injunction from doing so.

7. Right to enforce partition:

Every adult coparcener is entitled to enforce a partition of a coparcenary property. He cannot,

however, file a suit for a declaration of the amount of his share, as he has no definite share, until
partition.

In one leading case (Appaji v. Ramchandra, 16 Bom. 29), the Bombay High Court held that there is
one important exception to the above rule, namely, that where the father is joint with his own
father or other collateral members, a son cannot enforce a partition against the will of the father.
This exception is also recognised in the State of Punjab also, but not in other parts of India.

8. Right to account:

A coparcener has no right to ask for accounts from the manager as regards his dealing with the
coparcenary property and the income thereof, unless of course, such coparcener is suing for a
partition, in which case, he would have such a right.
9. Right of alienation:

No coparcener can dispose of his undivided interest in coparcenary property by gift. Nor can he
alienate such interest for value, except in the State of Tamil Nadu, Madhya Pradesh, Maharashtra
and Gujarat. An unauthorised alienation is not however, absolutely void; it is merely voidable at the
option of the other coparceners.

However, it is open to a creditor, who has obtained a decree against the coparcener personally, to
attach and sell his undivided interest, and if this is done, the purchaser can have his interest
separated by a suit for partition.

10. Right to impeach unauthorised alienations:

Every coparcener has the right to impeach alienation by the manager, or any other coparcener, in
excess of their powers. Such alienation can be impeached only by a coparcener or by a transferee
who has acquired the entire interest of a joint family in the property alienated.

11. Right to renounce:

A coparcener has the right to renounce his interest in the coparcenary property. He can do so by
expressing his intention to that effect, and if he does so, no other formalities would be necessary.
Such a renunciation must, however, be in favour of the whole body of coparceners. Even if he
renounces in favour of one individual member, the renunciation will operate for the benefit of all
the coparceners.

12. Right of survivorship:

All the coparceners of a joint Hindu family have a right of survivorship in respect of the joint family
property. Thus, if one coparcener dies, his undivided interest in such family passes by survivorship to
the remaining coparceners, and not to his heirs by succession. (The circumstances in which this right
of a coparcener does not exist have already been considered earlier.)

13. Right to make self-acquisition:

A coparcener has the right to acquire property of his own, and keep it as his self-acquired property.
The other coparceners would have ho claim on such property.

14. Right to manage:

A coparcener, who is the senior-most member of the family, is entitled to manage the coparcenary
property and business, and to look after the interests of the family on behalf of the other
coparceners, unless he is incapacitated from doing so by illness or other like and sufficient cause.

Guardians

1) Meaning of Guardian -

The law of guardianship is based on the incapacity which the law attributes to minors and to
persons who are deficient in mental capacity. The guardian occupies a fiduciary position and is
bound, for instance, to manage the property of the minor with the same here and prudence with
which he would manage own property. Under Hindu Law, a guardian means, a person having the
care of the person of another or his property or both, this was so because under Hindu law the
husband was the natural guardian of his wife as also of his minor child. there are four Kinds
prescribed under the Hindu Minority and Guardianship Act 1956.

2) Definition of Guardian -

Section 4 (b) of the Hindu Minority and Guardianship Act defines "Guardian" (major) means a
person having the care of the person of a minor or of his property or of both his person and property
and includes –

(i) a natural guardian,

(ii) a guardian appointed by the will of the minor’s father or mother,

(iii) a guardian appointed or declared by a court, and

(iv) a person empowered to act as such by or under any enactment relating to any court of
wards.

3) Kinds of Guardians -

According to Section of the Hindu Minority and Guardianship Act, 1956 there are four Kinds of
Guardians are as follows -

(1) a natural guardian,

(2) a guardian appointed by the will of the minor’s father or mother,

(3) a guardian appointed or declared by a court, and

(4) a person empowered to act as such by or under any enactment relating to any court of
wards.

(i) Natural Guardian -

A natural guardian is one who becomes so by reason of natural relationship with the minor.In
other words, a natural guardian is a person having the care of the person of a minor or of his
property or both, by virtue of his natural relationship with the minor. The natural guardian of a
minor boy or minor unmarried girl is the father. On the death of the father, the mother becomes the
natural guardian.

Section 4(c) of the Hindu minority and guardianship Act 1956 defines "Natural guardian', Section
6 of the Hindu Adoption and Maintenance Act deals with the Natural guardian and Section 8 Lays
down the powers of the natural guardian.

(ii) Testamentary Guardian or Guardian Appointed by will

Testamentary Guardian is a person appointed by who will to be the 'guardian of a child' under
18. Under the old law only the Father by which will could appoint a testamentary guardian. Under
the Hindu minority and guardianship Act 1956, even the mother can do so. The powers of the
testamentary guardian are not higher than those of a natural guardian. They are subject to the
limitations imposed by the will. This was so under the old Law also. But under the new law, the
testamentary guardian's power's are statutorily curtailed just like the power of natural guardians.
That is, the prior permission of the court is required for alienations as in the case of a natural
guardian.
(iii) Guardian Appointed or declared by Court

Where the court is satisfied that it is for the Welfare of minor that an order should be
made appointing a Guardian of his person or property or both, the court may make an order under
the Guardians and Wards Act, 1890 appointing a guardian. In appointing or declaring a person as the
Guardian of a minor Welfare of the minor shall be the Paramount consideration.

(iv) A person empowered to act as such by or under any enactment relating to any Court of Wards.

Under order 32 of the Civil Procedure Code, a guardian ad litem may be appointed or removed
or where the management of an estate is vested, for the time being in a court of wards, Guardian of
the minor whose estate is so wasted may be appointed under the provisions of the Court of Wards
Act.

Natural Guardian and the power and duties

In Hindu Law only three persons are recognized as natural guardian i.e., father, mother and
husband. Section 6 of Hindu Minority and Guardianship Act 1956 says that Natural Guardian of a
Hindu Minor in respect of Minor's person as well as in respect of minor's property (excluding his or
her undivided interest in joint family) are :

a) In case of boy and unmarried girl: The father and after him the mother however custody of minor
less than 5 years of age shall ordinarily be with the mother.

b) In case of illegitimate Boy and illegitimate Unmarried Girl : The mother and after her the father.

c) In case of Married Girl : The husband.

No person shall be entitled to act as `Natural Guardian' of minor

a) If he has ceased to be Hindu

b) If he has completely and finally renounced the world.

Natural guardianship of adopted son -

The natural guardianship of an adopted son who is a minor passes, on adoption, to the
adoptive father and after him to the adoptive mother.

Powers of Natural Guardian

(1) subject to the provisions of this section ,the natural guardian of a Hindu minor has power, to do
all acts which are necessary or reasonable and proper for the benefit of the minor or for the
realization, protection or benefit of the minor’s estate; but the guardian can in no case bind the
minor by a personal contract.

(2) The natural guardian shall not, without the previous permission of the court,—

(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise any part of the
immovable property of the minor or
 (b) lease any part of such property for a term exceeding five years or for a term extending
more than one year beyond the date on which the minor will attain majority.

(3) Any disposal of immovable property by a natural guardian, is breaking of sub-section (1) or sub-
section (2), is voidable at the instance of the minor or any person claiming under him.

(4) No court shall grant permission to the natural guardian to do any of the acts mentioned in sub-
section (2) except in case of necessity or for an obvious advantage to the minor.

These Power also Include

1. Right to education
2. Right to choose the religion
3. Right to custody
4. Right to restrict movement
5. Right to discipline

In Manik Chand v. Ram Chander, AIR 1981 SC 519, it was observed that in respect of alienation of
Minor's property the touch stone of guardian's power continues to be necessity or benefit. Though
expressions `Necessity' and `Evident advantage' used in Section 8(4) of the Act are wider than
expression `legal necessity' and benefit of estate as used before commencement of Act of 1956.

Testamentary Guardian

A testamentary guardian is one who is appointed by a will of the natural guardians of the minor.
Father who is the natural guardian of his minor children can appoint guardian for them who are
known as testamentary guardians. Section 9 of the Hindu Minority and Guardianship Act, 1956,
relates to the testamentary guardians and their powers.

Section 9 of Hindu Minority and Guardianship Act 1956 says:

 For a legitimate boy or a girl, the father, who is a natural guardian, may appoint any person
to act as the guardian of the child after the death of the father. However, if the mother is
alive, she will automatically become the natural guardian and after her death, if she has not
named any guardian, the person appointed by the father will become the guardian.
 A widow mother who is a natural guardian, or a mother who is a natural guardian because
the father is not eligible to be a natural guardian, is entitled to appoint a person to act as a
guardian after her death.
 For an illegitimate child, the power of appointing a testamentary guardian lies only with the
mother.

Powers

A testamentary guardian assumes all powers of a natural guardian subject to limitations described in
this act and to the limitations contained in the will. A testamentary guardian is not liable personally
for the expenses and he can ask the guardian of the property of the minor to meet the expenses
through the property. The rights of the guardian appointed by will cease upon the marriage of the
girl.
Divorce under Hindu Marriage Act

Divorce under Hindu Marriage Act, 1955

In the Hindu Marriage Act, there are some provisions given regarding a valid divorce, i.e. when the
spouse can get divorce or appeal for dissolution of marriage in the court of law. For the interest of
the society, the marriage or the marital relationship needs to be surrounded by every safeguard for
the cause specified by law. Divorce is permitted only for a grave reason otherwise given other
alternative.

The Hindu Marriage Act is based on the fault theory in which any one of the aggrieved spouses
(Section 13(1)) can approach the court of law and seek the remedy of divorce. Section 13(2) provides
the grounds on which only the wife can approach the court of law and seek the remedy of divorce.

Grounds of Divorce as per The Hindu Marriage Act

Adultery

The concept of Adultery may not be considered as an offence in many countries. But as per the
Hindu Marriage Act, in the matrimonial offence, the adultery is considered as one of the most
important ground for seeking divorce. Adultery means the consensual and voluntary intercourse
between a married person with another person, married or unmarried, of the opposite sex. Even the
intercourse between the husband and his second wife i.e. if their marriage is considered under
bigamy, the person is liable for the Adultery.

In Swapna Ghose v. Sadanand Ghose

In this case, the wife found her husband with other girl lying on the same bed and the neighbour also
confirmed that the husband has committed an offence. Here the wife gets the divorce.

In Sachindranath Chatterjee vs Sm. Nilima Chatterjee

In this case, the petitioner and the defendant were married. After marriage, the husband leaves the
wife in his home town so that she can complete her studies and go to another city for work. He
visited twice or thrice a month to meet her. Later he found that his wife commits the adultery i.e. to
involve in sexual intercourse with his own nephew, watchman etc. The plaintiff approaches the court
to demand divorce on the ground of adultery and his petition was accepted and the marriage gets
dissolved.

Essentials of Adultery

One of the spouses involved in the intercourse with another person, married or unmarried, of the
opposite sex.

Intercourse should be voluntary and consensual.

At the time of the act, the marriage was subsisting.

There must be sufficient circumstantial evidence to prove the liability of another spouse.

Cruelty

The concept of cruelty includes mental as well as physical cruelty. The physical cruelty means when
one spouse beats or causes any bodily injury to the other spouse. But the concept of mental cruelty
was added as the spouse can also be mentally tortured by the other spouse. Mental Cruelty is lack of
kindness which adversely affects the health of the person. Well it is easy to determine the nature of
physical cruelty but difficult to say about mental cruelty

What is considered as Mental Cruelty against Husband by wife:

Humiliating the husband in front of his family and friends.

Undertaking the termination of pregnancy without husband consent.

Making false allegation against him.

Denial for Martial Physical Relationship without a valid reason.

Wife having affair.

Wife living an immoral life.

The constant demand for money.

Aggressive and uncontrollable behaviour of Wife.

Ill-treatment to the husband parents and family.

In Balram Prajapati vs Susheela Bai

In this case, the petitioner filed the divorce petition against his wife on the ground of mental cruelty.
He proved that his wife that behaviour with him and his parents was Aggressive and uncontrollable
and many times she filed the false complaint against her husband. The court accepts the petition
and grants the divorce on the ground of cruelty.

What considered as Mental Cruelty against wife by Husband

False accusation of adultery.

The demand for dowry.

Impotency of Husband.

Force to abort the child.

The problem of drunkenness of husband.

Husband having affairs.

The husband lives an immoral life.

Aggressive and uncontrollable behaviour of the husband.

Humiliating the wife in front of family and friends

Desertion

Desertion means the permanent abandonment of one spouse by the other spouse without any
reasonable justification and without his consent. In General, the rejection of the obligations of
marriage by one party.

Essentials

Permanent abandonment of the other spouse.

Rejection of the obligation of marriage.

Without any reasonable justification.

No consent of another spouse.

In Bipin Chander Jaisinghbhai Shah vs Prabhawati

In this case, the respondent leaves the house with the intention to abandon his wife. Later the wife
approaches the court, but the defendant proved that even though he left the house with the
intention to desert, but he tried to come back and he was prevented from doing so by the petitioner.
Here, the defendant cannot be held liable for desertion.

Conversion

If one of the spouses converts his religion to any other religion without the consent of the other
spouse, then the other spouse can approach the court and seek the remedy of divorce.

Illustration

A, a Hindu has a wife B and two children. One day A went to church and converted to Christianity
without the consent of B, here B can approach the court and seek for divorce on the ground of
conversion.

In Suresh Babu vs Leela

In this case, the husband converts himself into Muslim and marries another woman. Here the wife
Leela filed a case and demanded the divorce on the ground of conversion without her consent and
cruelty.

Insanity

Insanity means when the person is of unsound mind. Insanity as a ground of divorce has the
following two requirements-

The respondent has been incurably of unsound mind.

The respondent has been suffering continuously or intermittently from mental disorder of such a
kind and to such an extent that the petitioner cannot reasonably be expected to live with the
respondent.

In Vinita Saxena vs Pankaj Pandit

In this case, the petitioner filed a case to get the divorce from the respondent on the ground that the
respondent was suffering from Paranoid Schizophrenia which means mental disorder. She came to
know these after her marriage. Here, the court grants the divorce on the ground of insanity of
husband.

Leprosy

Leprosy is an infectious disease of the skin, mucous membranes, nervous system etc. this disease is
transmitted from one person to another. Thus it is considered as the valid ground for divorce.

In Swarajya Lakshmi vs G. G. Padma Rao

In this case, the husband filed the case for granting the divorce on the ground of leprosy. He claimed
that his wife is suffering from incurable leprosy with the expert’s reports. Here he succeeds in
getting the divorce on the ground of leprosy.

Venereal Disease

Under this concept, if the disease is in communicable form and it can be transmitted to the other
spouse, then this can be considered as the valid ground for divorce.

Illustration

A and B married on 9 September 2011. Later A suffered from a venereal disease and it is incurable.
There’s also a chance that B can also get infected by that disease if she lives with A. Here, B can
approach the court for dissolution of marriage

Renunciation

It means when one of the spouses decide to renunciate the world and walk on the path of the God,
then the other spouse can approach the court and demand the divorce. In this concept the party
who renunciates the world is considered as civilly dead. It is a typical Hindu practice and considered
as a valid ground for divorce.

Illustration

A and B got married and lives a happy life. One day A decides to renunciate the world. Here, B has a
right to approach the court and seek the remedy of divorce.

Presumption of Death

In this case, the person is presumed to have died, if the family or the friends of that person does not
hear any news about the person alive or dead for seven years. It is considered as the valid ground for
divorce, but the burden of proof is on the person who demands the divorce.

Illustration

A was missing from the last seven years and his wife B does not get any news about him of being
alive or dead. Here B can approach the court and ask for the divorce.

Concept of Divorce with Mutual Consent

As per Section 13B, the person can file the petition for divorce by mutual consent of both the
parties. If the parties want to dissolve their marriage as a mutual consent are required to wait for
one year from date of marriage. They have to show that they are living separately for one or more
year and not able to live with one another.

Partition /Partial Partition/ who are entitled a share on partition/ when there be a reunion

Partition is the intentional severance of coparcenary property by members of a joint family. The true
test of partition of property, according to Hindu Law, is the intention of members of the family to
become separate owners. It has been held that it is a matter of individual volition and reduces the
members to the position of tenants-in-common, requiring only a definite, unequivocal intention on
the part of a member to separate and enjoy his share in absolute severally.
For a partition no consent of other members nor a decree of a court or any other writing is
necessary. A member may effect a separation in status by giving a clear and unmistakable intimation
by his acts or declarations of a definite intention to become separate, even though he goes on living
jointly with the other members of the family and there is no division of property.

Under Mitakshara School of Hindu Law `Partition of Joint Family' involves (i) Severance of joint
status or interest (ii) Actual division of property i.e. Partition by metes and bounds. Severance of
status is quite distinct from `de facto' division into specific shares of joint property.

For severance of joint status or interest a clear, definite and unequivocal expression of intention of
partition by any coparcener is sufficient. In Giraja Nandani v. Bijendera, AIR 1967 SC 1124, it was
observed by Supreme Court "Partition can be made by a definite, unambiguous declaration of
intention by any member to separate himself from the family. If this is done, it would amount to
division of status. Whatever mode of partition may be used, partition may be effected by institution
of suit or by parties to arbitration or by demand for share in properties or by conduct which evinces
an intention to sever the joint family."

Minor Coparcener : Hindu Law makes no distinction between a Minor Coparcener and a major
coparcener, in respect of his right in the joint family property.

In Bishudeo v. Seogeni, AIR 1951 SC 180 Supreme Court held that Minor coparcener has also right of
partition. A suit for partition may be filed on behalf of minor by his next friend or guardian.

Dayabhaga School : According to Dayabhaga law, foundation of coparcenary is laid on the death of
father. So long as the father is alive, there is no coparcenary in the strict sense of the word between
him and his male issue. It is only on his death leaving two or more male issues that a coparcenary is
first formed.

The essence of coparcenary under the Mitakshara law is unity of ownership. On the other hand, the
essence of coparcenary under the Dayabhaga law is unity of possession. It is only unity of possession
not unity of ownership. Every coparcener takes a defined share in the property and he is owner of
that share. That share is defined immediately when the inheritance falls in. According to Dayabhaga
law, each coparcener has, even while the family remains undivided, a defined and certain share in
joint property of which he is owner, though the possession is joint.

Partial partition

A partition may be called partial

As to property- in case when the joint Hindu family owns more than one property in different places,
and one of the properties is to be sold or divided, such partition is partial partition as to property.

As to persons- in case where only one of the members of the joint hindu family wants to separate
from the rest, such partition is partial partition as to persons.

Persons who have a right to partition and share

Both under mitakshara and dayabhaga school, every coparcener has a right to partition and is
entitled to share.

A minor coparcener can also ask for partition.

Every coparcener has a right to partition except in case of

 1. Unqualified coparcener
2. Under Bombay school, sons cannot ask for partition against their father if the later is
attached with his own father or collateral.

The following people can claim partition and are entitled to share in the partition-

1. Father- under mitakshara school, the father not only has a right to partition but also has the
power to effect partition among the sons. The father can also impose partial partition
among the sons but he must act bona fide and not unfair to anyone. A suit to re-open, the
partition can take place in case of partiality or mala fide partition by the father.
2. Son, grandson, great-grandson -under mitakshara school, son, grandson and great grandson
have a right to seek partition
3. Son born after partition- According to Vishnu and Yajnavalkya the partition should be
reopened to give the share to the son born after partition. However, Gautama, Manu,
Nerada held a different view about the same.

Before the amendment of 2005, females couldn’t be the coparceners but some females like the
mother, father’s wife and grandmother had the right to share at the time of partition.

Modes of Partition

Partition i.e. severance of joint status of a family can be established in the following ways-

1. expression of intention- one member of the joint family can express his intention to
partition, even though no actual partition takes place.
2. by Notice
3. by Will
4. by agreement- such severance of status takes place from the date of signing of the
agreement.
5. by arbitration- if the members of the joint hindu family come into an agreement where they
appoint arbitrators for themselves to divide the property, the partition comes into existence
from the day the agreement was signed.
6. by father- the karta of the family if expresses his wish to seek partition, such partition comes
into existence.
7. by suit- when a coparcener files a suit for partition, it amounts to an unequivocal intimation
of an intention to sever and consequently, severance of status comes into existence from
the date the suit was instituted.
8. Conversion to another Religion- this leads to automatic severance of status, and it exists
from the day of such conversion. However, he is entitled to receive a share from the
property.
9. Marriage under special marriage act- if a coparcener marries according to the provisions of
special marriage act, 1954 severance of status occurs automatically from the date of
marriage and the coparcener is entitled to receive his/her share from the property.

Reopening of Partition

In a coparcenary, the coparceners hold the property as one common unit, partition means the fixing
of the shares of each coparcener. the partition can be classified into two types-

De jure Partition

This partition brings merely the severance of status or interest. This happens when the community
of interest is broken, either at the instance of one of the coparcener or by the agreement of all the
coparceners. In such a partition, the shares become clearly demarcated and are no longer
fluctuating. However actual partition does not take place.

De facto Partition

This is a partition by metes and bounds. This happens when the unity of possession is broken. It is
only after the de facto partition, the respective shares of the coparceners become their exclusive
shares. Here the actual division of shares takes place.

When can partition be reopened

Generally, partition once made is irrevocable, however, the same can be reopened in case of
following circumstances –

Mistake- a suit can be filed, if any of the joint family properties have been left out of partition by
mistake they can be subjected to partition later.

Fraud-The partition can be reopened if any of the coparceners had done any fraudulent or mala fide
act. For example, if any of the property has not been made subject to partition fraudulently.

Disqualified Coparcener-Due to some reasons, the disqualified coparcener might be underprivileged

from his share of the property at the time of partition. In such a situation, he could get the partition
removed after the disqualification is removed.

Son in Womb-If a son is in the Womb at the time of partition, and no share was allotted to him, at
the time of partition then later it can be reopened.

Adopted Son-The adopted son is permitted to re-open the partition in case if the widow of a
coparcener adopted a son after the partition. Such adoption under the Hindu Adoptions and
Maintenance Act 1956 related back to the date of death of deceased husband & such adopted son
can reopen partition.

Absent Coparcener-Coparcener who is not present at the time of partition has a right to reopen the
partition if he is absent at the time of partition and no share is allotted to him.

Minor Coparcener-If a minor coparcener can claim for reopening the partition if he is not alloted his
share at the time of partition, after attaining majority. If at the time of partition his interests are not
be properly safeguarded then he can reopen the partition.

A partition can be reopened at the request of minor coparcener even if there is no fraud,
misrepresen-tation or any undue influence.

Reunion

Meaning and Essential elements of Reunion

The word ‘reunion’ is self- explanatory. It simply means establishing the joint status of a family again
which was lost due to partition amongst the coparceners. After a partition takes place in a Hindu
joint family, reunion is the only way left through which the joint status of the family as before the
partition can be regained.

Reunion can take place among those members who originally had the joint status in the property as
a coparcener. In other words, only those persons can reunite who were the parties to the original
partition.
While reuniting, the intention of the parties is an essential factor. To constitute a reunion, there
must be an intention of the parties to reunite in estate and interest. The intention should be aiming
towards reversing the present status to the former status of joint tenancy. Absence of intention will
not lead to reunion. Also, mere living together without any intention of reunion, will also not
considered as a reunion. The intention must be communicated clearly and unequivocally. The act of
the reuniting must be unilateral i.e. each coparcener must give his consent for reunion. It can come
into effect only on mutual agreement of all the parties whereby all the members agree to regain
their joint status and thus, forming a Hindu joint family again.

It is not necessary to have any formal agreement of reunion. It may be oral or written which is not
mandatory to be registered or by the conduct of the parties.

Effect of Reunion

The first effect of reunion is to remit the reunited members to their former status as members of a
Hindu joint family. Secondly, through reunion, the property in the hands of the separate members is
thrown back to the pool of Hindu joint family property. The members regain the status of undivided
coparcerners. Therefore, the reunion restores the joint family to its former status and position so
that there must not exist any difference in any essential particular from the status of family before
partition.

It is a well established law that a Hindu family is presumed to be joint until the contrary is proved.
But as soon as the partition is proved , the presumption is that the family is divided and will remain
the same. Reunion of partition is a rare event which barely takes place in cases. Therefore, when a
reunion is pleaded before any court, it must be strictly proved that partition took place in the joint
family. The evidence must be clear and consistent. Any kind of ambiguity in the conduct of the
parties or in the evidence will not sustain a plea of reunion.

Joint Family or Coparcenary Property. –

Property according to Hindu Law may be divided into the following two classes viz.,

1. Joint family or coparcenary property; and

2. Separate property

Joint family property which is also called coparcenary property is that in which every coparcener has
joint possession and joint ownership. The coparcenary property consists of :-

(i) Ancestral property

(ii) Separate property of coparceners voluntarily thrown into the common coparcenary stock with
the intention of abandoning all separate claims upon it.

Ancestral property consists of the property inherited by a male Hindu from his father, grandfather or
great grandfather. A business under Hindu Law is a distinct heritable asset. When a Hindu dies
leaving a business, it descends like other heritable property on his heirs. In the hands of male issues
it becomes joint family property.

As a general rule there is no presumption that Joint family is possessed with only joint property, as in
Harihar Sethi v. Ladu Kishore Sethi, AIR 2002 Ori. 110 it was observed that a Hindu, even if joint
family may possess separate property. Such property belongs exclusively to him. No other member
of the coparcenary not even his male issue acquire any interest in it by birth and on his death
intestate, it passes by succession to his heirs and not by survivorship to surviving coparceners.
Karta

Introduction

In Hindu joint family, the senior most male ascendant is the head of the family and is called The
Karta. Karta represents the family and acts on its behalf. In a family consisting of the father and his
children, father is the Karta when he dies his eldest son becomes the Karta. Thus in a joint family
consisting of brothers the eldest brother is the Karta. It is open to the senior member to give up his
right of Management. Then one junior to him can become the Karta. Karta is the head of the joint
family acts on behalf of the member of the joint family.

Who is Karta

Karta is the head of the Hindu joint family. he is also known as ‘karata’. he occupies a unique
position in the management of the joint family. the father or the senior most male member act as
‘karta’ .even a junior most member can be a karta , if the other male members (coparceners) agree
to it. A minor male (coparceners) may also act as a karta through his legal guardian till the become a
major.

Can a female be a Karta?

A woman cannot be a coparcener she cannot become the manager /Karta of the Hindu joint
family. the relevant leading case on this point is.

Gangoli Rao vs.Chinnappa AIR 1983 (K222)---In this Case A, a father has a wife and two minor sons .a
died leaving behind his undivided interest in the joint family property .the widow alienated the
property .the alienation was challenged by the sons on the ground that a woman cannot be a Karta
and hence cannot alienate the property. The widow justified the alienation, contending that it was
made by necessity.it was held that the alienation by the widow /mother in such situation is valid .but
on appeal ,the supreme court admitted the contention of the sons and held that woman cannot be a
coparcener and Karta, following the decision in commissioner I.T vs .S.M .Mills, AIR 1966SC24.

The Position of Karta -

Position of "Karta" Relations of `Karta' of Joint Hindu family with its other members are not that a
principal and agent or partners. He being head of the family acts on behalf of the family but not as
Partner or Agent because his powers are much wide and unlimited. Unless there are charges of
misappropriation etc. he is master of family affairs and no one can question him regarding his
authority. So he is not bound for his positive failures, nor he is bound to give fixed amount of income
to family. He to bound to carry out the interests of joint family to optimum by best of his ability and
judgment. He is bound to manage joint family business for whole of the family. However, any
coparcener can ask him for partition.

Karta's Liabilities :-

`Karta' of a joint Hindu family is a being representative of whole family, bound to maintain all
members of the family. If he improperly excludes any member from maintenance, he can be sued
for maintenance as well as for arrear of maintenance. `Karta' of family is bound to manage the joint
property and business of the family to the greatest advantage. Karta has duty to spend reasonably.
`Karta' of the Joint Hindu family is also responsible for all unmarried members of family specifically
an unmarried daughters. Karta has to pay tax and other due on behalf of family. He can be sued or
he can sue, on behalf of family.

Powers of `Karta'

1. Manager's Power Over Income and Expenditure -- The Manager or Karta of a joint Hindu family
has complete control over its income and expenditure. He is neither a trustee nor an agent of other
members. So long as he spends the income of the family for the purposes of the family he is not
under any legal obligations to economize or to make savings. The family purposes for which he is
authorized to spend the family income are the maintenance, residence, education, marriage, Sradha
and other religious ceremonies of the copareners and their families. If the manager spends more on
such items than what the other coparceners approve, their only legal remedy would be to ask for a
partition.

A Karta cannot, however, misappropriate family funds or misapply them to purposes other than
those of the family. If he does so he is liable to make good all such sums to the other members of the
family.

2. Power of Alienation -- He can alienate for value, family property so as to bind interests of the
other coparceners adults or minors provided that the alienation is made for legal necessity, or for
the benefit of the estate or for the legitimate and proper purposes of family business.

3. Power to Contract Debts -- The Manager of a joint Hindu family has an implied authority to
contract debts and pledge the property of the family for this purpose. Such debts would be binding
on the other members of the family to the extent of their interest in such property. However, the
manager himself would be liable personally also and not to the extent of his interest in the property
as he is the party to the contract.

4. Powers to Contract -- He has the power of making contracts, giving receipts and compromising or
discharging claims ordinarily incidental to the business of the family.

5. Power to Acknowledge Debts -- A manager of a joint family has the power to acknowledge debt
but he has no power to relinquish a debt due to the family. Nor can be pass a promissory note to
receive a debt which is already time-barred.

6. Power to Manage a Family Business or to start a New Business - The Karta has the power to
manage the joint Hindu family business. His position is not akin to that of a trustee or of an agent
though some of his duties and functions may appear to be similar in character to those of trustees
strictly so called. He has also the authority to start a new business for the family with the required
consent of members.

7. Power to Give a Valid Discharge -- He has power to give a valid discharge for debt due to the joint
family. Hence if one of the members is a minor, he cannot claim the benefit of Section 7 of
Limitation Act.

8. Power to Represent the Joint Family Property in Suits and Other Proceedings -- He may sue or be
sued as representing the family in respect of a transaction entered into by him as a manager of the
family or in respect of the joint family property and the decree would bind other coparceners even if
they are not parties to the suit.
9. Power to Refer Disputes to Arbitration - A Manager has also the power to refer disputes relating
to joint family property to arbitration provided that he does so bona fide i.e., without any fraud or
collusion and for the benefit of the family.

10. Power of the Manager to Compromise -- If a Manager of a joint Hindu family enters into a
compromise bona fide for the benefit of the family such a compromise binds all the other members
of the family including.

Matrimonial relief