Tag: coparcenaryproperty

This article provides the readers with an insight into the Gains of Hindu Learning Act of 1930 by analyzing the act in detail, pointing out the loopholes, and providing suggestions.

Introduction

Hindu law is known for its existence from ancient sources and scripts written by scholars. These sources have originated centuries back, and the soul of Hindu law lies in these texts which include almost every matter of the current scenario from marriage, divorce, rights, and duties of spouses to property and maintenance. Matters pertaining to property were always debated, even in the contemporary era. The property which is earned, whether it comes under coparcenary or self-acquired property and their definitions of how a property can be classified into either of the categories were always a matter of discussion for an extended period until the Hindu gains of learning act were passed 1930. The Joint Hindu family has its traces in the patriarchal society where Karta was the head of the family and he took all the decisions. There was no room for the self-acquired property. The self-acquired property was legally recognized after this act came into effect. The core meaning of this act signifies all the properties a person earns through his learnings. Learning can be in any educational form. Any property a person earns by the application of his education or by any trade practices or profession is self-acquired property. It is recognized under the gains of learning act that he has the sole right over the property, and no other person even a member of the Joint Hindu family, can have control over it. This article aims to deeply analyze the importance of gains of the Hindu Learning Act 1930 by quoting various relevant judgments and individual property rights.

Historical Backdrop

Coparcenary property is passed on from generation as of amendment passed in the year 2005, both males and females have equal rights over the ancestral property. This makes the individuals have joint possession of the property. The coparcenary property however cannot be disposed of by any of the individuals. One can only dispose of his share of the property. However, as one individual owns the self-acquired property, it can be disposed of by him.

Before 1930, the position of self-acquired property was unknown; therefore, there were many conflicting views. The self-acquired property itself was not recognized under a separate law. The earlier rule was unjust as no person could have self-acquired property because it was of the view that any property earned through the fund of a Joint Hindu family will naturally become a part of the joint Hindu family. It even includes educational funding. Even if an individual’s education was funded by the joint-Hindu family, and he earns property through his efforts and learnings, it would still count as joint property. Subsequently, in the year 1930, to give clarity regarding the partition of the property, the Hindu gains of learning act was passed. The first attempt to pass this legislature was made in the year 1898 in the madras legislature. Sir Bhashyam Iyengar was the one to make this attempt. Nevertheless, it went in vain because of the veto powers of the governor in the year 1901. Later the act came into effect on the year 25^th July 1930.

The main motive behind passing this act was fulfilled by removing the loopholes regarding property distribution and clearing the ambiguous nature of property rights. This act started to realize the efforts and learnings of an individual to earn property. The learnings of the individual are dominant rather than the means of learning. Whether funding to provide learning was through the joint family was less important. On the contrary, this act was not initiated to give property to the individual blindly. A thin line of distinction was drawn between individual rights on property and coparcenary rights. When the coparcener sets up a private firm with the earnings of the joint family, then the share of the organization’s profit must be shared between other coparceners. On the other hand, the salary earned by applying own skills belongs to the coparcener only. This gave clarity to the act. The only property earned through direct funding comes under the family’s rights.

Judicial Position After the Act

In the case, Durvasula Gangadharudu v. Durvasula Narasammah and Ors¹ the matter of discussion was whether the property earned by a lawyer employing his profession comes under self-acquired. The court in this case held that it would depend on the factual circumstances. In most cases, the education or learnings of the lawyer would be funded by the family so that it would be treated as a jointly owned property. This led to not realizing the efforts of the individual to acquire a property. The individual’s consent on whether he wanted to share the property was of no value. This led to holding every member of the joint Hindu family jointly responsible for legal conflicts arising from the property. Moreover, it resulted in undue pressure on children as they naturally become part of the property through coparcenary rights before attaining maturity to understand the consequences and their rights. A property earned by an artist, exhibiting his own talent and skills was still considered joint property. There was no value given to his skills. A property was realized as self-earned only when there was no direct or indirect funding source. In the case, of Laleshman Mayaram v. Jamnabai,² the petitioner was a lawyer by profession and a judge filed a petition for claiming self-acquired property. The family funded only elementary education, and every other achievement was self-earned. So, his acquired property was considered self-acquired. In another case, Amar Nath Gokulchand v. Hukum Chand Nathul Mal.,³ Gokulchand spent 7 years abroad for his education. When he returned, the property he earned was partitioned between the family. This was later challenged. The court held that even though he did his education abroad, there was no proof that he funded the education with self-earned money. The family’s earnings funded it. Therefore, the property is subjected to partition.

In the case, Chandrakant Manilal Shah And Anr., v. Commissioner of Income Tax,⁴ Chandrakant Manila, the Karta in the joint Hindu family along with his son Naresh Manila started a partnership firm. But the partnership was held invalid because no earnings or property or any asset was contributed by the son which is necessary for a partnership. He only contributed skill and labour. Court held the partnership valid, stating the fact that according to the gains of the Hindu Learning act, even skills and learnings to acquire property are recognized under the self-acquired property.

In Balbir Singh Uppal and Anr., v. Gurmeet Singh Uppal and Ors.⁵ The petitioner was residing in Pakistan and owned some ancestral property in Pakistan. But after the partition, he moved to Delhi and started residing in Delhi with his son (defendant). The petitioner gave a share of the joint family property to the son to start his business. The issue was whether the profit earned in the business should be shared with the joint family. The court in this case made a significant observation. It was stated that in matters where the capital of the business is contributed more by the assets of the joint family, then the profit of the business should be shared with the family. But if the learnings of the individual play a more significant role in the business than the capital then it is not necessary to yield the profit. In the present case, as the business was of herbal medicines, the knowledge of the defendant was more important in the business regarding different herbs. The family property was just a supplement in the business for support. Therefore, it was held that the earnings are self-acquired.

Loopholes and Conclusion

One of the major loopholes of the act was that the reasonable amount clause was not added to the Hindu gains of Learning Act, of 1930. The law allows the members of the joint family to use the funds of the family for self-acquiring property through learning. But the proportion in which these funds can be used was not mentioned anywhere. This may result in a disproportion in the distribution of the resources and members might take unfair advantage of it. In the present scenario, the cost of education is also increasing and differs from place to place. This would result in a substantial loss in the family fund. The same concept of reasonable proportion is applied in other fields of Hindu law as well. Where the daughter has the same right as the sons to get a proportional share of the property.

Another important suggestion is when the family fund is used by the member for learning purposes, he should have the moral obligation to repay it in any form to the family. Similar to the right of the son to repay the father’s debts in Hindu law. In the current scenario, more important to determine cases regarding property is to differentiate them based on whether the property is attained through learning. This ignores the fact that learning is gained only through the proper allocation of the family fund. Learnings are something that cannot be measured it is intangible.

Another vital motive behind this right was to improve the status of widows. When the property earned is considered joint property, and after the passing away of the member, it did not provide widows with the status to get a share of the property. This resulted in deteriorating their condition in society and being vulnerable to poverty. To uplift their status, this act was important. The matter of the hour is only to preserve the joint family’s fund. The family and its members should complement each other where funds are proportionally allocated to its members, and in return, the members owe an obligation to the family.

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References

1. Durvasula Gangadharudu v Durvasula Narasammah and Ors, (1872) Mad. H.C. 47
2. Laleshman Mayaram v Jamnabai, (1882) I.L.R. 6 Bom. 225.
3. Amar Nath Gokulchand v Hukum Chand Nathul Mal, 1921 (23) BomLR 671.
4. Chandrakant Manilal Shah and Anr., v Commissioner of Income Tax, [1991] INSC 272.
5. Balbir Singh Uppal and Anr., v Gurmeet Singh Uppal and Ors, SR. NO. 307 I.E CWP 17923 OF 2005.

This article is written by Vishal Menon, from Symbiosis Law School, Hyderabad.

-Report by Avinash Pandey

The Mitakshara philosophy, which is prevalent in most regions of India, believes that a male’s ability to be a coparcener is innate. However, if a baby boy is the fourth longitudinal descendant, i.e., a great-great-grandson, and his human ancestors are still living, the privilege to be included in the coparcenary will not be available until becomes the third descendant.

In Chokhelal & Ors. vs Ashwini Kumar & Ors the respondent had initially filed a suit for the pronouncement of 1/12 partition with another decree of separate possession for the house which was in contention. It was further claimed by the respondent that the property was his ancestral property which had belonged to the common ancestors wherein the great grandfather of the appellants was included.

The respondent further claims that after the death of the great grandfather, his son, following which his brother and thereafter the defendant became the Karta of the family. The name of the respondent was then recorded in the suit property. The appellant in his contention had mentioned that the property was not a Hindu joint family property and hence the contention by the respondent is not valid. The appellant further said that the house was built by his father. His father mentioned that the respondent was allowed to live in the house along with his family as a licensee.

The decision of the learned trial court stated that the suit was dismissed on the basis that the property in contention is not a joint Hindu family property and the appellant in this case i.e., Mr. Kumar was the exclusive owner of the property as the plaintiffs had separated themselves from him. The appellant had the rightful duty to sell off the property if he wanted to. The respondents filed an appeal aggrieved by the decision of the trial court.

The appellants had filed a counterclaim which had been dismissed by the trial court and then by the first appellate court. The second appeal of counterclaim had been filed before the High Court of Madhya Pradesh.

The Hon’ble High Court in its observation of the appeal filed by the respondents had stated that the respondent had been born prior to the Hindu succession act and had a right to the joint Hindu property belonging to his great grandfather. Furthermore, the court stated that the property being the joint Hindu family property was never under the ownership of the appellant or his father.

The court further stated in this case that the dismissal of the appeal of the counterclaim filed by the appellant is correct by the lower appellate court. The final order passed by the first appellate court was confirmed and the second appeal was dismissed.