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FAMILY LAW 2
MODULE 1
1. Elaborate the reasons for which a KARTA can alienate the joint family property. When
father is the Karta, what are his special powers? 7M

A. Karta:
The senior most male member in the joint family is called Karta. The father and in his absence
the senior most male member is presumed to be the Karta.

B. Reasons for which a KARTA can alienate the joint family property:
In Mitakshara, KARTA can alienate the joint family property in three cases:
a) Aptakale (emergency)
b) Kutumbathre (benefit of the family)
c) Dhramarthe (pious purpose)
The present categories authorising alienations as recognised by the courts are as follows:
a) Legal necessity:
It means any necessity that can be sustained in law or justified by law. For alienation to be
valid under legal necessity, the course of action taken by the Karta should is such as an
ordinary prudent man.
b) Benefit of the estate:
‘Benefit’ means an advantage, betterment or profit. ‘estare’ refers to the joint family landed
property. So, a transaction which brings an advantage to the property of the family would be
covered under the expression ‘benefit of the estate’.
c) Performance of religious or an indispensable duty:
The Dharmashastras provide for elaborate rituals to be performed on various occasions in a
man’s life. Joint family property can be alienated by the Karta for the performance of
indispensable religious and charitable duties, for example shraddha of an ancestor.
C. Powers of Karta:
1) Power of management:
He has absolute power of management. He may manage the family affairs the way he likes,
has power to take possession of the total property and receive the joint family income. If a
coparceners presence in the family behaves disorderly, Karta has powers to throw him out.

2) Power of alienation of the joint family property:

With respect to the joint family property the karta is entrusted with its management. But, he
does not own the property as a whole & if all the copaceners give their consent he can
alienate the property.

3) Power to contract debt:

The karta has power to contract debt for any lawful purpose and such debt binds the share
of all the coparceners. A coparcener even after seeking partition cannot escape the liability
of the debt from his share of the property.

4) Power of representation:
Karta has power to represent the family in all social, legal, religious and revenue matters. The
joint family acts through the karta. A suit will filed in the court by the family in the name of the
karta and a suit be filed against the family will be defended by him.
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2. Examine the scope and extent of the DOCTRINE OF PIOUS OBLIGATION in Hindu Law.
What are the debts left outside the scope of pious obligation? 7M
3. Pious obligation 4M
4. AVYAVAHARIKA DEBT 4M

A. Pious obligation of the son:

Under the Hindu law there is a special emphasis on the payment of one’s debt, as necessary for
the salvation of the soul. Due to the belief of rebirth, it is said that even though a man dies, the
soul carries the deeds and the burden of the debt into the next life. It was the duty of the putras
(son, son’s son and son’s son’s son) to liberate him from the burden of debts.
Therefore, the obligation of the sons to pay the debts of the father is religious and important for
according spiritual benefit to the departed father. Since the payment of debt was a spiritual duty,
the purpose of which it was contracted becomes important.
B. Debts left outside the scope of pious obligation: Avyavaharika Debts: 4M
Debts contracted for purposes that could not be justified in accordance with religious tenets or a
person’s dharma could not extend on the obligation on the son for its repayment. Debt incurred
for immoral and illegal purpose (Avyavaharika debts) were not binding on the son. Instances of
Avyavaharika debts:
➢ Money borrowed for payment of fine inflicted for criminal offences;
➢ Loan taken by the father to meet his vices;
➢ Gambling debts.
After the passing of The Hindu Succession (Amendment) Act 2005, doctrine of pious obligation
was abolished.
5. ANTECEDENT DEBT 4M, 4M
A debt, the payment of which permits the father to sell the joint family property, must be an
antecedent debt. ‘antecedent’ means prior in time and an antecedent debt means a debt that is
prior in time to the present alienation of the property by the father. Two conditions are necessary
to bind the entire joint family properties:
• The debt should be an antecedent one
• It should not have been incurred for an immoral or illegal purpose.
Thus, a loan taken to repay the loss incurred in gambling cannot be further repaid by the
alienation of the joint family property, so as to bind the shares of all the joint family members.

6. Explain the salient features of Hindu Mithakshara Coparcenary system. How does a
coparcenary within coparcenary arise? 12M
7. COPARCENARY PROPERTY 4M
8. Unobstructed heritage. 4M
9. Survivorship 4M

A. Introduction:
Inside the joint family is a smaller unit called as coparcenary. It consists of a common male
ancestor and his male descendants upto fourth generation (including the ancestor). They are
called coparceners and they are owners of the joint family property. This group of persons unlike
the joint family are related to each other only by blood or through a valid adoption, and it is a
creation of law.
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B. Classical Law:
Under the classical law, no female could be a member of a coparcenary. No person can by
marriage and no stranger can by agreement become a member of the coparcenary. A single
person cannot form a coparcenary, there should be at least two male members to constitute it,
On the death of one of the coparceners his property passes by survivorship to other coparceners.
C. Illustration:
Coparcenary is illustrated in the following figures:

D. Coparcenary within a coparcenary:

There is no limit to the number of members a coparcenary may have. There can be a big
coparcenary consist of the father, his sons, grandsons and great grandsons. There can be a
coparcenary within a coparcenary comprising sons and their descendants also.
Suppose a coparcener consist of P and three sons Q, R and S. Q having two sons QS1,QS2. R
having three sons RS1, RS2, RS3. Suppose P and three sons Q, R and S acquire the separate
property then when Q dies his separate property can be acquired by his sons QS1, QS2 and
they can form a separate coparcenary themselves. This concept is called Coparcenary within
the Coparcenary.

E. Coparcenary property: 4M
Property inherited by a Hindu male from his male ancestor i.e., his father, father’s father, and
father’s father’s father is called coparcenary property. In this property the sons acquire a right by
birth. Coparcenary property can be acquired by the following ways:
• Property inherited from paternal ancestor.
• Property inherited from divided father.
• Property acquired by utilising coparcenary property.
• Blended property.

F. Daya:
The property is called Daya (heritage). Daya arises out of the relationship with the last holder of
the property. Mitakshara school classifies property mainly under two heads:
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1) Unobstructed Heritage. 4M
Unobstructed Heritage (Aprathibandha Daya): ‘A’ in aprathibandha daya refers to ‘minus or
without’, meaning without restriction on the heritage that comes to a person.
All property inherited by a male Hindu from a direct male ancestor, not exceeding three
degrees higher to him is called aprathibantha daya.
The ancestral property of the father is an unobstructed heritage for his putras (three lineal
male descendants). Unobstructed heritage devolves by survivorship.
2) Obstructed Heritage (Saprathibandha Daya):
‘Sa’ means ‘with’ and prathibandha refers to an obstruction. All other relatives other than the
putras only have an obstructed heritage in the ancestral property in the presence of the
putras. In the self-acquired property of the father, the putras have only an obstructed heritage
and it devolves by inheritance.

G. Rights of coparceners:
1) Right by birth in the family:
The moment a coparcener is born he acquires an interest in the coparcenary property which
is equal to the interest of the father.

2) Right to common ownership and enjoyment:

The coparceners together possess the title to the coparcenary property. The ownership of
the coparcenary property vests with the members.

3) Right of survivorship: 4M
When a coparcener dies as a member of an undivided coparcenary, his interest in the
property is immediately taken by the surviving coparceners and he leaves nothing behind
that can be called his own share in the joint property.
This is the right of the surviving coparceners to enlarge their shares in the property is due to
the application of the doctrine of survivorship. The right of survivorship is one of the basic
rights of a coparcener.
4) Right to challenge alienation:
The power of alienation of the joint family property is with the karta.

5) Right to make acquisitions:

A coparcener can hold an interest in the coparcenary property and possess separate property
of his own at the same time. He has full power of disposal over his separate properties.

6) Right to partition:
A coparcener is competent to demand partition. He can do so by manifesting an unequivocal
intention to separate himself from the joint family and communicate it to other coparceners.

7) Right to accounts:
The karta has the authority to manage the joint family affairs and he is not liable to
accountable to the other members.

8) Right to renounce his interest:

A coparcener is empowered to renounce his undivided share in the joint family property, in
favour of all the remaining coparceners.
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H. Woman's Right to Property Act 1937:

The Woman's Right to Property Act 1937 deals with survivorship after the death of the
coparcener’s widow. Section 3 of the Act provided that when a Hindu dies having an interest in
a Hindu joint family property, his widow or in case more than one widows shall have in the
property the same interest as he himself had. The interest which she takes is only a limited
interest known as women’s estate.
I. Conclusion:
The concept of coparcenary has come a long way and has undergone many changes. The 2005
amendment is a big step in dismantling patriarchal forces because it grants women economic
freedom and challenges the notion that they become a part of their husband’s family after
marriage. It is necessary to understand whether equality exists only as a phenomenon or it is
actually present for the awareness and approval of the majority of the people.

J. GAINS OF LEARNING. 4M, 4M, 4M

K. Hindu Gains of Learning Act, 1930. 4M
Any property or income acquired with the aid of joint family funds would in itself become joint
family property. But if it is applied without any exceptions it can lead to strange consequences.
The children in a joint family may receive education out of the joint family funds.
In Gokul Chand v. Hukum Chand, The Court observed that if the family spends nominal
expenses on education, then it will be treated as self-acquired property; if they spent extensive
expenses, it will be treated as joint family property.
But this did not solve the problem. So, The Hindu Gains of Learning Act 1930 (Jayakar Act)
was passed. This Act was the outcome of the decision in Gokul Chand’s case.
This Act considers anything which a person earns out of any education as self-acquired property,
whether the education imparted was ordinary or special education. Gains of learning are thus
always self-acquired property as the result of the Act.