PROPERTY
Discuss the concept of “Property” under Mitakshara law and explain its various types along with their differences.
Every aspect of Joint Hindu Family in India is governed by Mitakshara law school. According to this school, for bringing the joint Hindu family into existence there is a need of joint property but after the establishment of Joint Hindu family it is not essential that the joint property should remain in existence whereas in Mitakshara Coparcenary, it is essential that the joint property should remain in existence.
So, it can be said that property is one of the most important element of Joint Hindu
Family. Mitakshara law school classifies property into two parts:-
• Joint Family Property
• Separate Property
Joint Family Property has its own importance in Joint Hindu family and it has its existence since the time immemorial. But till now it ha no definition either in any statute or judicial pronouncement.
Basically, Joint family property is that property in which every member of joint Hindu family has his right to share and that member acquires the right from his birth.
According to Mitakshara law school, the joint family property is devolved by survivorship. So, basically it means Joint family property is a big reservoir and every member of joint Hindu family can take his share from that reservoir.
According to Mitakshara law school Joint Family property includes various properties like:-
• Ancestral property
• Property acquired with aid of ancestral property
• Property acquired at the cost of ancestral property
• Separate property of member who mixed it with joint Family property.
According to Mitakshara school, Ancestral property is that property which is inherited from father, father’s father or father’s father’s father. So, any property which is inherited by a Hindu male from direct male ancestors not exceeding three degrees higher to him is called ancestral property. In this property, a son, son’s son and son’ son’s son acquires an interest in property from their birth. This property is also called an “unobstructed property” because accrual of an interest in it is not hindered by the existence of an owner.
In the leading case of Arunachalam vs Murugantha (AIR 1953 SC 495),The Supreme Court held that, “ All property inherited by a male Hindu from his father on father’s father or father’s father’s father is ancestral property. It is immaterial whether the property was ancestral or self acquired in the hands of deceased.
According to Mitakshara school, if the joint family members acquire any property with the aid of joint family property, that will also be considered as Joint family property. This is also known as Doctrine of Accretion.
In the leading case of Kumaraswami vs Subba (AIR 1977 Mad 353), The Hon’ble court held that, “any property which is acquired by coparcener out of the income of joint family property will be considered joint family property.”
According to Mitakshara school, if any property is acquired by members of joint family at the cost of joint family property, that newly acquired property will be considered Joint family property. This is known as Doctrine of Detriment. Moreover, according to this school, if any coparcener mixes his own separate property with the joint family property and leaves no doubt that he wants to make it joint family property, then that separate property will be considered joint family property. This is also known as Doctrine of Blending.
Whereas, according to Mitakshara school, separate property is that property which is acquired by a member of Joint Hindu family or coparcener without the aid of joint family property or not at the cost of joint family property. So, any property which is acquired by an individual through his own efforts and without assistance of family funds that property is called separate property. It is also called an “Obstructed property.” Because in such property, a person does not acquire any right by birth but he acquires an interest on the death of an owner.
According to Mitakshara school, any property which is acquired by a person from any person other than father, father’s father or father’s father’s father is a separate property. The doctrine of survivorship is not applicable upon this property and this property is devolved either by intestate succession or testamentary succession.
According to Mitakshara school, separate property includes gift of self- acquired property by father to his son, property held by sole surviving coparcener, separate earnings of an individual, income of joint family property allotted to a member for his maintenance.
Hence, it can be said that the main difference between Joint family property and separate property is that the joint family property is that property which is acquired from ancestors and in such property, every member has interest by birth whereas separate property is that property which is acquired by self efforts and without aid of joint family property and no other person has any interest in such property and it is devolved upon heirs only after death of owner unless the owner during his life time gives gift of that property.
