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THE SURVIVAL OF THE HINDU JOINT FAMILY

THROUGH ALL ADVERSITIES

MINHAZ HUSSAIN1

ABSTRACT

The Hindu Joint Family is a very prominent form of family structure in all

over India. However certain changes have come about in the Joint

Family structure due to various factors thereby making it a difficult to

sustain. The primary goal of this paper is to learn about the future

survival or demise of the Joint family. In doing so, the various avenues of

socio-legal changes would be discussed. Also the reasons for such

changes would also be looked into. The paper would attempt to analyse

the Joint family structure as it was and as we know today while exploring

all those factors that has contributed to its change, if any. Furthermore, it

would also be discussed as to how the Joint family adapted to these

changes and whether the Joint family would be able to sustain any more

changes and ensure its survival or with the passage of time it will

eventually go into extinction.

Keywords: Joint Family, Law, Karta, Hindu Undivided Family, Tax,

Demise, Survival.

I. INTRODUCTION

The Joint Family is a unique system peculiar to the Hindu Societies. From time

immemorial Hindus’ have been living in a Joint Family structure. Sometimes

1 Author is a 3rd Year BA LLB (Hons.) student at National Law University and Judicial

Academy, Assam, India.

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several generations can be found living under the same roof and remain

undivided. However with the passage of time, the other communities in India

viz. Muslim, Christians, etc have also adopted this structure of Family Union.

The primary reason for its adaptation by other communities is because of the

support it offers to its members in times of their hardship and that loneliness is

a concept alien to the Joint Family system.

However, in this paper, we will focus only on the study of the Hindu Undivided

Family and its structure. This system, because of the modern phenomenon of

Globalisation, Urbanisation, etc., has faced a lot of trouble in continuing in its

original form. However, HUF’s, with all this hardships has been continuing.

Even in the legal field a number of changes have come about which have

reduced the historical importance that an HUF had, and has moved its focus

more towards the upliftment of individuals.

Thus, in this paper, we will study about the problems faced by HUF in the

modern era. We would also look into the various changes that have been

incorporated in the HUF structure by legal precedents and look at the changes

brought about in Kerala. The paper would, in a nutshell, revolve around

studying whether the Joint Family would be able to survive these changes and

continue its form, or it would, eventually with the passage of time, go into

extinction.

(A) RESEARCH QUESTION

1. What are the changes that have come about in the Joint Family system?

2. Whether the Joint Family would survive or demise in the future?

(B) AIMS AND OBJECTIVE

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The aim of the researcher is to understand the changes in the Joint family

system and the reason for such a change.

The objectives of this paper are as follows:

o To study the structure of the Hindu Joint Family.

o To study the reason for the change in the structure of a Joint family.

o To study the changes in the Joint family system.

(C) SCOPE AND LIMITATIONS

The paper covers the various factors for the change in the Joint family system.

Also it covers the various legislations that have shaped the joint family

structure as we understand it today.

The paper is limited only to the study of the change in the Joint family structure

and its chances of survival or demise in the future.

(D) RESEARCH METHODOLOGY

1. Approach to Research: In this task doctrinal research was included.

Doctrinal Research is an exploration in which optional sources are utilized

and materials are gathered from libraries, files, and so on. Books, diaries,

articles were utilized while making this task.

2. Types of Research: Analytical type of research was utilized in this task, in

light of the fact that the venture point was not moderately new and

incomprehensible and furthermore on the grounds that different ideas were

should have been clarified. Field Research was not conducted.

3. Sources of Data collection: In this paper secondary Data were used.

Secondary data refers to those data which are already stored in the form of

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books, documents, diaries or any other text. No surveys or case study were

conducted.

4. Citation: 20th Edition of Bluebook has been used as a mode of citation.

II. FORMATION AND STRUCTURE OF JOINT FAMILY

A Hindu Joint family is a common situation of family structure in India. Its

origin can be traced from ancient patriarchal society. In the ancient society,

each house was governed by the eldest male, who in turn took all the decisions.

It was from this system that the concept of Karta came into existence. Hindu

Joint Family is a unit which is headed by a person called Karta.2 In ancient

Hindu Law, family came prior to individual. That is to say, a Hindu Joint

Family was recognized by the Hindu Society and the individuals were only

considered as a unit of it. In those times, even the property acquired by an

individual was, under normal circumstances, treated as the property of the Joint

Family. The concept of separate property was introduced only after the society

grew and businesses and trade started expanding.

The HUF found legal recognition in the late 19th century, but it was the Income

Tax Act under colonial rule in 1922 that gave it the status of a separate and

distinct tax entity. The legal category of the HUF has existed in the tax code

since then.3 However, such recognition has not come overnight. It has evolved

eventually over time. Such inclusion is based on a much longer history of

acceptance of the Hindu customary laws by the British Administration. Both

the Income Tax Act of 1860 as well as that of 1866 recognised the HUF as a

legal entity in its capacity as an individual. In the debate on the Super Tax Bill

2 Ram Kumar v Commr. Income Tax, AIR 1953 ALL 150. 3 Chirashree Das Gupta & Mohit Gupta, “The Hindu Undivided Family in Independent India’s

Corporate Governance and Tax Regime”, South Asia Multidisciplinary Academic Journal, 15

(2017), p 1.

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of 1917, it was proposed the HUF be recognized as a distinct category for

taxation, in order to overcome the problem of the dual characteristics of being a

family and a business entity. This interpretation led to the recognition of the

HUF as a separate tax entity which was subsequently incorporated into the

Income tax Act of 1922.4

(A) STRUCTURE

According to Sir Dinshaw Mulla, “A Hindu Joint family consists of all persons

lineally descended from a common ancestor and includes their wives and

unmarried daughters. A daughter ceases to be a member of her father’s family

on marriage, and becomes a member of her husband’s family.”

A ‘Hindu Joint Family’ consists of all male members descended lineally from a

common male ancestor together with their mothers, wives or widows and

unmarried daughters.5 The term “unmarried daughters” is of great significance.

The moment a daughter is married off she ceases to be a part of her Father’s

HUF and becomes a part of her Husband’s HUF. Only on the unfortunate event

of the death of the husband or she being deserted by her husband, the daughter

is reinstated as a member of her Father’s HUF. In the case of Gur Narain Das v.

Gur Tahal Das6, the Supreme Court observed that even an illegitimate son of a

male descendant will be a part of his Hindu Joint family.

Members of a Hindu joint family are subjected to the presumption that they are

living in a state of union unless it is established otherwise and this presumption

becomes weaker, the farther one goes from the founder of the family.7 It is

4 Eleanor Newbigin, THE HINDU FAMILY AND THE EMERGENCE OF MODERN INDIA, 2013. 5 Surjit Lal v. Commissioner of Income Tax, (1978) 101 ITR 776. 6 Gur Narain Das v. Gur Tahal Das, AIR 1952 SC 225. 7 Moro Vishwanath v Ganesh (1873) 10 Bom HC 444.

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presumed that the family continues to be a joint family if it is joint in affairs of

food, worship, and estate.8 However, from the point of view of Hindu Personal

Laws, a Joint Family can exist even without the existence of a Joint Family

property. The first requisite is the family unit, and the possession by it of family

property is the secondary requisite. 9 Such property maybe called a

“Coparcenary property”. Coparcenary is a narrower institution10 within a joint

family comprising only male members.11

The very first facet to bring the Hindu Undivided Family into existence is the

presence of a senior-most male member. It is well settled that a Hindu Joint

Family requires plurality of members and not necessarily plurality of males.12

New members to the family maybe added either by marriage of the lineal male

descendent or by birth or adoption of a child of that male descendent.13

In Narenderanath v. Commissioner of Wealth Tax14, the Supreme Court held

that the expression “Hindu undivided family”, in the Wealth Tax Act is used in

the sense in which a Hindu joint family is understood in the personal law of

Hindus and a joint family may consist of a single male member and his wife

and daughters and there is nothing in the scheme of the Wealth Tax Act to

suggest that a Hindu undivided family to be considered as an assessable unit

must consist of a single male member and his wife and daughters and there is

nothing in the scheme of the Wealth Tax Act to suggest that a Hindu undivided

family to be considered as an assessable unit must consist of a least two male

members.

8 Rukhmabai v. Lala Laxmi Narayan, 1960 SCR (2) 253. 9 P.P Saxena, FAMILY LAW LECTURES, (2nd ed., 2007), p 543. 10 Bhupatrai Hirachand v. Commissioner of Income Tax, (1977) 109 ITR 97 (Cal). 11 CED v. Harish Chandra, (1987) 167 ITR 230 (All). 12 N. V. Narendranath v. Commissioner of Wealth Tax, 1970 AIR 14. 13 Ram Kumar v. Commissioner, Income Tax, AIR 1953 All 150. 14 Narenderanath v. Commissioner of Wealth Tax, 1969 SCR (3) 882.

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In Commissioner of Income Tax v. Gomedalli Lashminarayan15, there was a

joint family consisting of a father and his wife and a son and his wife, the son

being the present assessee. On the death of the father the question aroused was,

whether the assessee was to be assessed as an individual or as a member of the

Hindu Undivided Family? While answering this question, the Bombay High

Court held that the son’s right over the property was not absolute as there are

two females who have a right to maintenance from the property. As such, the

assessee’s income should be treated as the income of the Joint Family.

However, once the joint family comes into existence, it will continue despite

the death of its senior most male member. Even when all the male members of

a Joint Family are dead and only the females are alive, under such a scenario,

the Joint Family will not cease to exist if she has the capacity to introduce new

male members to the family, either by birth or by adoption. In Anant Bhikappa

Patil v. Shankar Ramchandra Patil16, the Privy Council held that on the death

of the sole surviving coparcener, a Hindu joint family is not finally terminated

so long as it is possible in nature or law to add a male member to it. Thus, there

can also be a joint family where there are widows, only. When a person is

adopted or born after the death of the last lineal male descendent, it is presumed

that the former was in existence at the time of the latter’s death. This is known

as relating back. In a nutshell, the continuation of the joint family is not

restricted in point of time and until it ends by the death of all members of the

family capable to form such family, it continues.

15 Commissioner of Income Tax v. Gomedalli Lashminarayan, (1935) 37 BOMLR 692. 16 Anant Bhikappa Patil v. Shankar Ramchandra Patil, AIR (30) 1943 P. C. 196.

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(B) HINDU JOINT FAMILY AND HINDU UNDIVIDED FAMILY

(HUF)

Hindu Joint family and Hindu Undivided family are terms that are, at most

times, used interchangeably. The term Hindu Undivided Family has been used

in the revenue statutes while in Hindu law it is referred to as Joint family. It was

held in Commissioner of Income Tax v. Parshottamdas K. Panchal17 that, the

term “Hindu Undivided Family” is to be construed in the same sense as it is

used in Hindu Law.

However there are some subtle differences between the two terminologies. The

most basic difference between the two terminologies is that, in Hindu Joint

family, property is not a necessary element, but the very essence of the term

Hindu Undivided Family, in revenue statues, requires the existence of property.

Moreover, unlike Hindu Law where it is presumed that a family is joint unless

the contrary is proven, a Hindu Undivided family under the revenue statute is

not presumed to be joint.

The Rajasthan High Court in Commissioner of Income Tax v. Madan Lal

Parikh,18 held that, “There is no such thing as HUF’s property. In fact the

subject index of Mulla’s Hindu law which deals with nearly every matter

discussed in the book does not refer to any such thing as HUF or the Hindu

undivided family much less property belonging to such a family.” After the

introduction of the revenue statutes the term Hindu Undivided Family is used in

the same line as Hindu Joint Family since in the modern times it is not common

to find a Joint Family without property and as such, it is natural that both the

terms be used interchangeably. It may be noted that the term Hindu Joint family

17Commissioner Income Tax v. Arun Kumar Jhunjhunwalla, (1997) 223 ITR 45 (Gau). 18 Commissioner of Income Tax v. Madan Lal Parikh, 2002 (123) Taxman 603 (Raj).

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has a wider perspective than an Undivided Hindu Family because of the simple

fact that the term HUF is concerned with such families which have property but

the term Hindu Joint family may or may not include property. It can therefore

be concluded that, the term Hindu Undivided Family and Hindu Joint Family

are to be used synonymously.19

III. EXCLUSION OF A MEMBER FROM THE JOINT FAMILY

Once a member of a Joint Family, he may not always be the member of the

same Joint Family. It is evident that a Joint family cannot be formed by contract

between two different families. Severance from a Joint family may either be

voluntary or because of breach of some code specified. It is known that when a

daughter is married off, she ceases to be a member of the Joint family of her

father. Even a child born in the family will cease to be a member of the Joint

Family if he is given in adoption to another family by a person competent to do

so in law.

A male coparcener is treated to have separated himself, where there is a

definite and unambiguous intention manifested by him to separate himself from

the other members of the coparcenary and to enjoy share in severalty.20 A single

male or a female cannot constitute a Hindu Joint family individually even if the

assets in their hands are purely ancestral.21 Initially, a coparcener could be

disqualified from a Joint family on three grounds viz. (a) his conversion to any

religion other than those to whom Hindu law applies22; (b) his contracting a

19 NV Narendra Nath v. Commissioner Wealth Tax, AIR 1970 SC 14. 20 Suraj Narain v. Ikbal Narain, [1912-13] 40 I.A. 40 (1912). 21 Gowli v. Commissioner of Income Tax, Mysore, AIR 1966 SC 1521. 22 Ram Pergash v. Ml. Dahan Bibi, AIR 1924 Pat. 420. See also The Special Marriage Act,

1954, s. 19.

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marriage under Special Marriage Act, 1872, or Special Marriage Act, 195423;

(c) renunciation worldly affairs and joining religious order.24

A person married under the Special Marriage Act, 1872, or Special Marriage

Act, 1954, is excluded from being a part of the Joint family. However, in the

case of Commissioner of Wealth Tax, Madras and Ors. v. Late R. Sridharan by

L.Rs. & Rosa Maria Steinbicher Sridharan25, there was a Hindu male married

to a Christian woman under the Special Marriage Act, 1954 and they had a son

who was brought up as a Hindu. The Court held that the father and the son

constituted a Hindu Joint Family. The rationale behind this judgement was that

the father continued professing Hindu customs and that the son was brought up

as a Hindu inculcating Hindu customs and traditions. The Court quoted Mayne

wherein he says that, “A child in India, under ordinary circumstances, must be

presumed to have his father's religion, and his corresponding civil and social

status.”26 However, this judgment may not hold true in all cases and it would

actually depend on the facts of the cases whether a father and a son would form

a Hindu Joint Family if the father is a Hindu and the mother professes some

other faith.

In South India, however, the Joint Family status is not severed even when the

person alienates his entire property or a part of his undivided share. He will

continue to be an undivided member of the family with survivorship between

himself and the remaining members in all the family property other than what

23 Girdharilal v. Fatehchand, AIR 1955 MB 148. 24 Mulla, PRINCIPLES OF HINDU LAW 157 (13th ed. S. T. Desai 1966). 25 Commissioner of Wealth Tax, Madras and Ors. v. Late R. Sridharan by L.Rs. & Rosa Maria

Steinbicher Sridharan, (1976) 4 SCC 489. 26 Mayne, TREATISE ON HINDU LAW, AND USAGE (11th Edition) p 210

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he has transferred.27 Such an alienation before partition does not deprive the

alienating coparcener his rights in the joint family property.28

Thus it would be conducive to hold that, a Joint family status would not be

severed unless it is done voluntarily by the members or by any conduct that

would exclude them from being a part of the Joint family. A Joint may however

come to end even when all the members of the Joint Family are not dead. Prior

to 1956, if the family had no male member alive and had only unmarried

daughters, the Joint family would cease to exist. This is because a daughter is

incapable to introduce new members to the Joint family either by adoption or

by birth. Hence, at a point when only daughters are alive, the Joint Family

would cease to exist. However with the coming of the Hindu Adoption and

Maintenance Act, 1956, daughters were allowed to have child via. adoption and

such a child would be a part of his/her maternal grandfather’s joint family.29 As

such even unmarried could continue the Joint Family.

IV. CHANGES IN THE JOINT FAMILY SYSTEM

The family as a social institution has been undergoing change. Both in its

structure and functions changes have taken place.30 Overtime the Joint family

structure has undergone a number of changes. The Joint family as we see today

is not what it was prior to Independence. There are several reasons that have

contributed to such a change. Such changes have arisen from social, political,

economic or legal reforms. There is not any sole reason for such a change. All

27 Baldev Kohli, “Exclusion of Separated Person under Section 6 of The Hindu Succession Act,

1956”, Journal of the Indian Law Institute Vol 9. No. 1 (1967), p 96. 28 Gurlingappa v. Nandappa, (1902) ILR 21 Bom 797. 29 The Hindu Adoptions and Maintenance Act, 1956, s. 14(4). 30 Manisha Dhami, “Changing family structure in India”,

https://timesofindia.indiatimes.com/readersblog/manisha-dhami/changing-family-structure-in-

india-22129 (1 December 2020).

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reforms combined, he changes has come into effect. It has evolved over a

period of time. This changes can be studied under two broad banner i.e. (1)

Socio-political Reasons and (2) Legal Reasons.

(A) CHANGES BECAUSE OF SOCIO-POLITICAL REASONS

There are a number of Socio-political reasons which have led to the change in

the Joint Family structure. These are:

INDUSTRALISATION: One of the primary reasons for the disintegration of

Joint Families is industrialization. In India, before industrialization began, the

main occupation was agriculture and the entire family as a whole would work

in the fields and maintain the Joint Family. However, with the advent of

industrialisation, people, particularly the poor and marginalized peasant, started

working in those newly formed industries in want of a proper wage. Such

industries were not always situated in the same place as the person lived. As

such, he had to move to a different place in search of work. Under such a

circumstance, they would, in most instances, give up their Joint Family rights

and would start living as an independent individual.

URBANISATION: Another major contributor in the changes to the Joint

Family system is urbanisation. Indian population was mostly concentrated in

the villages. They carried out petty agriculture and trade and lived within a

Joint Family setup. However, when urbanisation started in India, this people

would move to the urban areas in search of employment and a better standard

of living. As such, they break away from the rural Joint Family and settle in the

newly formed urban areas as independent individuals.

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INCREASE IN POPULATION: With time India’s population as increased

considerably. During Independence the population of India was around 400

million which at present is close to 1.4 trillion.31 With such an increase in the

population, it is pretty obvious that the number of members of each Joint

Family would increase considerably. If the family does not have a considerable

amount of property to accompany such a large number of members, some of the

members are left with no other option, then to part ways from the Joint Family

and settle elsewhere. Population growth has contributed to the disintegration of

Joint families to a large extent.

EDUCATION: With the development of the education sector more and more

people got education. However, the avenues of employment were not very

wide. For any educated person living in rural areas, it was difficult to find a

suitable employment within their locality. As such they had to move out of the

Joint family structure and establish their own independent identity in an alien

place in search of employment. I.P. Desai and A.D. Ross have highlighted the

role of education against the joint family in two ways. One, by emphasizing

individualism, it puts before the people the concept of the type of the family

which is contrary to the joint family system, and two, it prepares the people for

occupations which cannot be found in their native places.32 As such to utilise

their education and uplift their standard of living they had to break away from

their joint family. Hence, education is considered as one of the factors of the

change in the Joint family structure.

EMPOWERMENT OF WOMEN: A Hindu Joint family is primarily a male

dominated system. It is the eldest male member who is the head of the family.

31 Office of the Registrar General & Census Commissioner, India. 32 I.P. Desai, “The Joint Family in India - An Analysis”, Sage Journal (1956).

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Up until 1929, women of the household merely had two rights i.e. right to

residence and right to maintenance. All the decisions regarding the family are

taken by the male members. Though the system of Joint family gave a security

to its members in times of distress, yet it completely disregarded the rights of its

female members. With the increase in women empowerment and activism, the

very structure of the Joint family itself has changed. Where earlier, only the

males could be the Karta of the Joint family, at present the eldest females can

also be the Karta of a family.33

(B) CHANGES BECAUSE OF LEGAL REASONS

The Joint family system is based on patriarchal line and it is the male member

who had a say in all the matters of the function and governance of a Joint

family. It was an unequal and unjust system as can be clearly observed from the

roles specified to the members and the economic status of the members and the

power exercised by the male members. Even the British Government did not

venture to interfere with the personal laws of Hindus or of other communities.34

However, social and political movements, during those times, made a lot of

demands regarding the upliftment of women’s in the society.

With the passage of time the situation gradually changed. The first legislation

which was framed for the upliftment of women was the Hindu Law of

Inheritance Act of 1929,35 which recognised the inheritance rights of three

female viz. son’s daughter, daughter’s daughter and sister. With the

introduction of this act the rights of three of types of females were enhanced

33 Mrs Sujata Sharma vs Shri Manu Gupta & Ors, CS (OS) 2011/2006. 34 Law Commission of India, “Property Rights of Women: Proposed reform under the Hindu

Law”, (Law Com no. 174, 2000) para 1.4. 35 Hindu Law of Inheritance Act, 1929, India Act II, 1929.

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and the Joint family property, to which only the males were entitled, was now

to be inherited by three classes of female.

Another landmark legislation during the same time which conferred ownership

rights on widows was the Hindu Women Rights to Property Act of 1937.36 This

was however a limited interest in the property until the Hindu Succession Act

of 1956,37 made it an absolute interest with power of alienation. The Hindu

Succession (Amendment) Act of 2005,38 conferred coparcenary rights to the

daughters and endowed them with the same status, rights and obligation as

enjoyed by a son. An important judgement with regard to this is Gurupad

Khandappa Magdum v. Hirabai Khandappa Magdum and Others,39 wherein it

was held that a wife is entitled to equal share as that of her husband and sons.

As such, the very patriarchal nature of the Joint family itself was changed and

both male and female were given same status, at least on paper.

V. THE DENOUEMENT OF JOINT FAMILY SYSTEM

Joint family system has been one of the peculiar family structures that is to be

found only among the Hindus. It is very difficult to be definite about the demise

of a Joint family in the future. However, there are several trends which show

that eventually the joint family system might come to end. It is of importance

that Joint family system has already been abolished in Kerala by virtue of the

Kerala Hindu Joint Family System (Abolition) Act of 1975.40

36 Hindu Women’s Right to Property Act, 1937, Acts of Parliament, Act No. XVIII of 1937

(India). 37 Hindu Succession Act, 1956, Acts of Parliament, Act No. 30 of 1956 (India). 38 Hindu Succession (Amendment) Act, 2005, Acts of Parliament, Act No. 39 of 2005 (India). 39 Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum and Others, AIR 1978 SC

1239. 40 The Kerala Hindu Joint Family System (Abolition) Act, 1975, Act XXX of 1976 as amended

by Act XV of 1978 (India).

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The primary reason which indicates towards a demise of the Joint Family

structure is the introduction of the new Section 6 under the Hindu Succession

(Amendment) Act, 2005. Under this Section daughters have been made

coparceners. Therefore, when a property is devolved onto a daughter it will be

held as her separate property. This means that when the daughter gets married,

those rights in the property would also go along with her and unless she wills

the property back to her father’s HUF, the property, if she dies intestate, would

devolve according to the provision of this act which in most cases would be her

heirs. The right of a married daughter to demand a partition of the coparcenary

property after the amendment of 2005 is absolute.41 Her heirs are member of

her husband’s HUF and not of her Father’s HUF. Thus when the property

would devolve to such an heir it would mean that it devolves upon someone

who is not a member of the Joint Family from where the property originated.

However, one of the essentials of Joint Family is that the joint family property

should devolve onto the members of the HUF. This essential is defeated and as

such the Joint family is disintegrated.

Another reason for the disintegration of the Joint family is that the members

under HS(A)A, 2005 take under succession and not under survivorship. This

means that they take as tenant-in-common and not under joint tenancy. Tenant

in common would mean enjoying the property in its severalty. They enjoy their

property separately. However, this would defeat the very notion of common

property under Hindu Joint Family. This makes the structure of Hindu Joint

Family weak.

41 Ganachari Veeraiah v. Ganachari Shiva Ranjani, AIR 2010 NOC 351.

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(A) THE KERALA HINDU JOINT FAMILY SYSTEM (ABOLITION)

ACT, 1975

In the Marumakkattayam law, which prevailed in Kerala wherein the family

was joint, a household consisted of the mother and her children with joint rights

in property. The lineage was traced through the female line. Daughters and their

children were thus an integral part of the household and of the property

ownership as the family was matrilineal.42

The Kerala model is the most unique system in the whole of India. In Kerala,

the entire concept of Joint Family has been abolished. Under this act, firstly, the

right of a person over a property by virtue of birth is abolished.43 Thereafter,

joint tenancy was replaced with tenancy in common.44 This means that each

member of the family would hold the property as a separate unit. The concept

of common property was abolished.

Thus in Kerala the Joint Family system stands abolished. The member of the

family get a share in the property only after the death of the proprietor of the

property ad each of them will hold such property as their separate property. The

concept of common property has become an alien concept for the people of

Kerala governed by this law.

VI. REASONS FOR SURVIVAL OF JOINT FAMILY IN THE PRESENT

ERA

Despite all the hurdles and difficulties faced by HUF’s it continues to survive.

There are many reasons for its survival. The first reason is its recognition as a

42 Law Commission of India, “Property Rights of Women: Proposed reform under the Hindu

Law”, (Law Com no. 174, 2000) para 1.3.5. 43 The Kerala Hindu Joint Family System (Abolition) Act, 1975, S 3. 44 The Kerala Hindu Joint Family System (Abolition) Act, 1975, S 4(1).

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distinct taxable unit by the Income Tax Act of 1961.45 For the purpose of

relaxation in tax, HUF are of great help as the income can be divided between

both the HUF and the Karta and thereby gross tax to be paid. A member of the

HUF shall not be liable for any amount which he/she earns as a member of the

HUF from the family income, even though the family may not have paid any

tax on his/her own income. Thus the privilege cannot be determined by how

much tax the HUF pays, but by how much of its income is not taxed at all by

being designated as "family income." Moreover a person can organize his/her

wealth through several HUFs and thus minimize his/her effective tax liability.

Another reason for keeping the Joint family intact is the support that it provides

in times of hardship of the members. The members need not have to worry

about the governance of the family. It is the responsibility of the Karta to

maintain the family with the income that is generated through the property. It is

the responsibility of the Karta to provide food, clothing, shelter, etc., as well as

to pay off debts and taxes. 46 These functions, upon partition, become the

responsibilities of the one who partitions.

Apart from the aforementioned reasons, one more reason which contributes to

continuity of Joint family is because the provision of reunion is not as simple as

partition. While in partition the intention of the one who wants partition is

necessary, but in case of reunion the consent of all the members are necessary.47

Moreover, only the original party to the partition can initiate reunion.48 Thus,

on the death of one of the party to the partition, reunion becomes impossible.

Because of these reasons the Joint Family structure is still intact.

45 Income-Tax Act, 1961, Acts of Parliament, Act 43 of 1961 (India). 46 Lalitha Kumari v. Rajah Vizianagram AIR 1954 Mad 19. 47 Puttarangamma and 2 Ors. v. M.S. Ranganna and 3 Ors., AIR 1968 SC 1018. 48 Ratnam Chettiar and Ors. v. S.M. Kuppuswami Chettiar and Ors., AIR 1976 SC 1.

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VII. CONCLUSION

The Joint family system has undergone a number of changes, both because of

soco-economic and political reasons as well as because of enactment new legal

precedents. Factors such as urbanisation, industrialisation and women

empowerment has contribute to a change in the joint family structure. Also with

the introduction of the Hindu Law of Inheritance Act, 1929; Hindu Women’s

Right to Property Act, 1937; Hindu Succession Act, 1956; Hindu Succession

(Amendment) Act, 2005 and the Kerala Hindu Joint Family System (Abolition)

Act, 1975 thee very structure of the Joint Family has been reshaped.

It is true that Joint Family was predominantly a patriarchal society. However,

with the passage of time it has now taken a more egalitarian approach. At

present even women can be the head or Karta of the Joint family which was

previously barred by Hindu personal laws. Thus it is evident that major changes

have come about in the structures and role of a Joint family.

However, change is something very different from extinction. Though, the Joint

family structure has been rapidly changing yet it does not mean that the Joint

family system would demise. A Joint Family has numerous advantages from

tax benefits to emotional support and as such extinction of such a system would

not happen anytime soon. However, the Joint family structure would continue

to change and evolve from time to time but would nevertheless retain the very

flavour or essence of the Joint family in it.

******

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VIII. BIBLIOGRAPHY

A. Books

1. Eleanor Newbigin, THE HINDU FAMILY AND THE EMERGENCE OF MODERN INDIA, 2013.

2. Dr. Paras Diwan, MODERN HINDU LAW (5th edition, 1991).

3. Dr. Poonam Pradhan Saxena, FAMILY LAW, Vol 2 (3rd edition, 2011).

4. Mayne, TREATISE ON HINDU LAW AND USAGE (11th Edition).

5. Mulla, PRINCIPLES OF HINDU LAW 157, (13th ed. S. T. Desai 1966).

6. P.P Saxena, FAMILY LAW LECTURES, (2nd ed., 2007).

B. Articles /Research Paper

1. Baldev Kohli, “Exclusion of Separated Person under Section 6 of The Hindu

Succession Act, 1956”, Journal of the Indian Law Institute Vol 9. No. 1 (1967).

2. Chirashree Das Gupta & Mohit Gupta, “The Hindu Undivided Family in Independent

India’s Corporate Governance and Tax Regime”, South Asia Multidisciplinary

Academic Journal, 15 (2017).

3. I.P. Desai, “The Joint Family in India - An Analysis”, Sage Journal (1956).

4. Manisha Dhami, “Changing family structure in India”,

https://timesofindia.indiatimes.com/readersblog/manisha-dhami/changing-family-

structure-in-india-22129.

C. Case Laws

1. Anant Bhikappa Patil v. Shankar Ramchandra Patil AIR (30) 1943 P. C. 196.

2. Bhupatrai Hirachand v. Commissioner of Income Tax (1977) 109 ITR 97 (Cal).

3. CED v. Harish Chandra (1987) 167 ITR 230 (All).

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4. Commissioner Income Tax v. Arun Kumar Jhunjhunwalla (1997) 223 ITR 45 (Gau).

5. Commissioner of Income Tax v. Gomedalli Lashminarayan (1935) 37 BOMLR 692.

6. Commissioner of Income Tax v. Madan Lal Parikh 2002 (123) Taxman 603 (Raj).

7. Commissioner of Wealth Tax, Madras and Ors. v. Late R. Sridharan by L.Rs. & Rosa

Maria Steinbicher Sridharan (1976) 4 SCC 489.

8. Ganachari Veeraiah v. Ganachari Shiva Ranjani AIR 2010 NOC 351.

9. Girdharilal v. Fatehchand A.I.R. 1955 M.B. 148.

10. Gowli v. Commissioner of Income Tax, Mysore AIR 1966 SC 1521.

11. Gur Narain Das v. Gur Tahal Das AIR 1952 SC 225.

12. Gurlingappa v. Nandappa (1902) ILR 21 Bom 797.

13. Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum and Other AIR 1978

SC 1239.

14. Moro Vishwanath v Ganesh (1873) 10 Bom HC 444.

15. Mrs Sujata Sharma vs Shri Manu Gupta & Ors CS (OS) 2011/2006.

16. N. V. Narendranath v. Commissioner of Wealth Tax 1970 AIR 14; AIR 1970 SC 14.

17. Narenderanath v. Commissioner of Wealth Tax 1969 SCR (3) 882.

18. Ram Kumar v. Commissioner, Income Tax AIR 1953 All 150.

19. Ram Pergash v. Ml. Dahan Bibi A.I.R. 1924 Pat.

20. Rukhmabai v. Lala Laxmi Narayan 1960 SCR (2) 253.

21. Suraj Narain v. Ikbal Narain [1912-13] 40 I.A. 40 (1912).

22. Surjit Lal v. Commissioner of Income Tax (1978) 101 ITR 776.

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D. Legislations

1. Hindu Law of Inheritance Act, 1929.

2. Hindu Women’s Right to Property Act, 1937.

3. Hindu Succession Act, 1956.

4. Hindu Adoptions and Maintenance Act, 1956.

5. Income-Tax Act, 1961.

6. The Kerala Hindu Joint Family System (Abolition) Act, 1975.

7. Hindu Succession (Amendment) Act, 2005.

E. Reports of Government

1. Law Commission of India 174th Report, 2000.

F. Websites

1. JSTOR

2. Manupatra

3. SCC Online