FAMILY LAW

Joint Hindu Family

A Hindu joint family consists of the common ancestor and all his lineal male descendants upon any
generation together with the wife or wives (or widows) and unmarried daughters of the common
ancestor and of the lineal male descendants. The existence of the common ancestor is necessary for
bringing a joint family into existence, for its continuance common ancestor is not a necessity.

According to Sir Dinshah Mulla, “A joint Hindu 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 joint and undivided family is the normal condition of Hindu society. An undivided Hindu family is
ordinarily joint not only in estate, but also in food and worship. The existence of joint estate is not an
essential requisite to constitute a joint family and a family, which does not own any property, may
nevertheless be joint. Where there is joint estate, and the members of the family become separate in
estate, the family ceases to be joint. Mere severance in food and worship does not operate as a
separation.

The property of a joint family does not cease to be joint family property belonging to any such family
merely because the family is represented by a single male member who possesses rights which an
absolute owner of a property may possess. It may even consist of two females members. There must
be at least two members to constitute Joint Hindu family. A single male or female cannot make a
Hindu joint family even if the assets are purely ancestral.

In Narenderanath v. Commissioner of Wealth Tax, the Supreme Court held that the expression
'Hindu undivided family' in the wealth Tax Act 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 as assessable unit must consist of a least two male members.

In Commissioner of Income Tax v. Gomedalli Lakshminarayan 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
father the Question raised is whether the assessee is to be assessed as an individual or as a member
of the joint Hindu family, It was held that the son's right over the property is not absolute because
two females in the family has right of maintenance in the property, therefore the income of the
assessee should be taxed as the income of a Hindu undivided family.

In Anant v. Shankar it was held that on the death of a 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.

A Hindu Joint Family consists of a common ancestor and all his lineal male descendants up to any
generation together with the wife or wives and unmarried daughters of the common ancestor and of
male descendants. The Common ancestor is necessary for bringing a joint family into existence; for
its continuance common ancestor is not a necessity. The death of the common ancestor does not
mean that the joint family comes to an end. Upper links are removed and lower are added and so
long as the line does bot become extinct, the joint family continues and can continue indefinitely
almost till perpetuity. A remarkable feature of Hindu Law is that even an illegitimate son is a member
of his father’s joint family. Sometimes even widowed daughters may return to their fathers family
and may lay claim on the bounty of the joint family. The ancient Hindu law recognized their right of
maintenance. A Hindu joint family is not a corporation. A Hindu joint family has no legal entity
distinct and separate from that of the members who constitute it. It is not a juristic person either,
same was held in Chotelal v Jhandelal (AIR 1972 ALL 424). A Hindu Joint family is a unit and in all
matters it is represented by a Karta. Within its fold no outsider, except by adoption, can be admitted
by agreement or otherwise. It confers a status on its members which can be acquired only by birth in
the family or by marriage to a male member. A Hindu joint Family is also different from a composite
family. Composite family was unknown to Hindu Law. The institution of composite family is a
creature of custom and owes its constitution to an agreement. Where two or more families agree to
live and work together, pool their resources, throw their gains and labour into the joint stock and
shoulder the common risk, there comes into existence a composite family. A single male or female
member cannot make a HJF, even if the assets are purely ancestral.

HINDU UNDIVIDED FAMILY

For the purposes of assessment of tax, the revenue statutes use the expression, ‘Hindu Undivided
Family’. This appears to be slightly different from the definition of a HJF. For instance, for the purpose
of revenue statutes, there can be an undivided family consisting a man, his wife and daughters or
even of two widows of a sole surviving coparcener. This definition is relevant for the purpose of
determining in which category the income should be assessed.

The Supreme Court said that the expression ‘Hindu Undivided Family’ in the Wealth Tax Act is used in
the sense in which a HJF is understood in the personal law of the 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 HUF as assessable unit must consist of at least two male
members. Thus, there can be JF consisting of a single male coparcener and the widows of
coparceners. There can also be a HUF where there are only widows.

The rule is that even on the death of sole surviving coparcener, the HJF does not come to an end so
long as it is possible in nature or law to add a male member to it. It was submitted that under Hindu
Law, when there is joint family consisting of female members and a male member, the male member
can treat the joint family property, almost as his separate property. As long as another male member
does not come into existence, it assumes the character of self acquired property, subject to the rights
of maintenance of female members. But for taxation purpose such a family will be called an
undivided family.

In Board of Revenue v Muthu Kumar (AIR 1979 Mad 1) it was held that when a son inherits the
separate property of his father under Sec.8 of the Hindu Succession Act, 1956, he takes it as his
separate property even though he has a son. It was submitted that this is an erroneous view. The
Hindu Succession Act effects only the old Hindu Law of succession and not law of joint family; once a
Hindu succeds to the property of his father, his sons acquire an interest in it.

 Position when there is only one male member in the family

In such a case the Joint Hindu family can still continue to function as the
requirement of a male member is essential to start a Joint Hindu family and
not for its continuance. It is not necessary to have at least two or more male
 members in the family to make it a Hindu Undivided family as a taxable entry.
In the case of CIT v. Gomedalli Lakshminarayan it was held that even if the
coparcenary does not exist in a family still that family continues to be a Hindu
Undivided family.

 Position when there are only daughters

After the Hindu Adoption and Maintenance Act, 1956
The Act gave power and permission to even a single woman to adopt a child.
As per law, the status of an adopted child is the same as that of a child born
into the family. Now, the woman could add a male member to her father's
Joint Hindu family without getting married. Therefore, an adopted child can be
maintained by a single parent also.

After the 2005 amendment in the Hindu Succession Act, 1956

The amendment to the Act gave the right to a daughter to be a coparcener
and now she can not only continue the Joint Hindu family but also constitute
one with her father and brothers.

 Position when there are only husband and wife

Because the couple has the option of adding a male member to the family, or
in other words, a coparcener, they can form a Joint Hindu Family. There is a
split in court opinion on whether a husband and wife can establish a joint
family under revenue statutes in order to qualify for the Hindu Undivided
Family tax exemption.

In the case of T. Srinivasan v. CIT, a partition took place in a Joint Hindu Family
and the son took his share. For a certain while, he filed his returns as an individual
until he got married. The question came into consideration when his wife was
pregnant. It was held that only when the son is born, he becomes a member of the
joint family.

 Position when there are only female members (widow)

On the death of the sole male member, a joint Hindu family can continue to
exist at the instance of already existing female members of the family. The
term 'continuation' is different from starting or forming a joint family for the
first time.

Illustration:
If A and B are brothers, C and D are wives of A and B respectively. Four of
them together constitute a Joint Hindu family.