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Advocate Dinkar Parasharam Bhave has explained the entire law relating to ‘Ancestral Property’ in Hindu Law. He has made extensive reference to all the statutory provisions and the important judgements on the point. He has argued that the impact of the law is such that the concept of “joint family property” may soon be relegated to the history of Hindu Personal Law<\/strong><\/p>\n INTRODUCTION:<\/strong><\/p>\n Under generally approved and accepted sense, the term “ancestral property<\/u>” means any property inherited up to four generations (including the holder of the property) of male lineage from the father or father’s father or father’s father’s father i.e. father, grandfather, great grandfather. In other words, property inherited from mother, grandmother, uncle and even brother is not an ancestral property. The essential feature of the “<\/strong>ancestral property”<\/strong> is that if the person inheriting it has sons, grandsons or great-grandsons, they become jointly owners-coparceners with him, and have equal share with the person inheriting. They become entitled to it due to their birth, unlike other forms of inheritance, where inheritance opens only on the death of the owner. <\/p>\n <\/p>\n 2.<\/strong> The dominance of “male lineage” as a core concept and hallmark of the ancestral property got a jolt when the Hindu Succession (Amendment) Act, 2005, declared that a daughter ‘shall by birth’ became a coparcener in her own right in the same manner as a son. Hence, effective 9th September 2005 the daughters got equal rights in the ancestral property, even if they were born before the enactment of Hindu Succession Act, 1956, ruled the Apex Court recently on 1st February 2018 (Danamma & Suman Surpur vs. Amar)<\/p>\n The essential attributes of the “ancestral property” and their implications are elaborated in the latter paragraphs. <\/p>\n 3. <\/strong>This monograph attempts to trace the origin of the un-codified Hindu Law, especially with reference to the Joint Family Property and inheritance rules and other aspects concerning gender inequality in holding the property under the personal laws and its gradual fading away with the onslaught of the Legislative dispensation commencing from the end of the nineteenth century, and further accentuated post–Independence with passing of the piecemeal Hindu Code Bills, one of them being the Hindu Succession Act, 1956, having colossal impact on the unique concept of ancestral property under the Hindu personal law. <\/strong><\/p>\n 4. In truth and substance, it is not the Hindu Succession amendment Act, 2005, that made the history; but it was the State of Kerala that took lead & put the death knell on the ancestral property concept by passing “The Kerala Joint Hindu Family System (Abolition) Act, 1975”, effective 01-12-1976. <\/p>\n – Section 4 (1) of the said Act, 1975 proclaimed: <\/p>\n “<\/em>4. (1) All members of an undivided Hindu Family governed by the Mitakshara law holding any coparcenary property on the day this Act comes into force shall with effect from that day, be deemed to hold it as tenants-in-common as if a partition had taken place among all the members of that undivided Hindu family as respects such property and as if each one of them is holding his or her share separately as full owner thereof”.<\/u><\/em> <\/u><\/em><\/p>\n 5. The State Amendments, such as the Hindu Succession (Andhra Pradesh Amendment) Act, 1986, and similar Amendments in the States of Tamil Nadu, Karnataka and Maharashtra giving a daughter equal status as that of a son, by birth, vastly diluted the ancient concept of the ‘ancestral property’ being exclusive privilege of the male lineage. A daughter could claim not only equal share in the ancestral property, but could, being a coparcener, on par with the son, demand ‘at will’ (whenever she wanted) partition<\/u> of the ancestral property. This accelerated the downturn of the ancestral property concept. <\/p>\n 6. By an interpretative process, the Honourable Supreme Court has demonstrated in the case of Prakash & Ors. Vs. Phulavati & Ors., decided 16-10-2015, that the concept of ancestral Property will go extinct sooner than later, when Sections 4, 6 and 8 of the Hindu Succession Act, 1956, are properly construed in accordance with the textual phraseology used therein on the contextual backdrop & environment. <\/p>\n The process of gradual fading away of the ancestral property in the light of these developments of law is discussed in the latter part. <\/p>\n 7.<\/strong> The broad concept of property ownership with equal rights to the male lineage up to three degrees, dominated unique “Hindu Joint Family” system. The family generally consisted of males\/females, and other relatives living under the common roof, taking food & performing prayers jointly, caring for each other and sacrificing for the common goal of keeping the family and the society at large united. Everyone had a dogmatic belief in the rules, traditional practices & custom compendiously known as Hindu Dharmashatra<\/em> धर्मशास्त्र, which prescribed rules of conduct, duties and obligations to different castes, groups and sects living in harmony to sustain common social fabric of material & spiritual life, popularly known as “Hinduism”. <\/p>\n 8.<\/strong> Half a century ago, a five-judge constitution bench of the Honourable Supreme Court of India in ‘Sastri Yagnapurushadji’ case [1966 SCR (3) 242 Swaminarayan sect] had attempted to narrate historical and etymological genesis of the word ‘Hindu’. In no judgment has the Apex Court even remotely defined the term “Hindu” or “Hinduism”, with any specificity. <\/p>\n In retrospect, it can be seen that “Hindu law”, as a historical term, refers to the code of laws applied to Hindus<\/a>, Buddhists<\/a>, Jains<\/a> and Sikhs<\/a> in British India<\/a>. Hindu law, in modern scholarship, also refers to the legal theory, jurisprudence and philosophical reflections on the nature of law discovered in ancient and medieval-era Indian texts. It is one of the oldest known jurisprudence theories in the world. The term ‘Hindu’ in these ancient records is an ethno-geographical term and did not refer to a religion.<\/p>\n 9.<\/strong> Hindu tradition, strictly speaking, does not express the law in the orthodox sense of jus<\/em><\/a> or of lex<\/em><\/a>.https:\/\/en.wikipedia.org\/wiki\/Hindu_law – cite_note-ludorocherhcl-6<\/a> ‘Jus’<\/em> was law in the abstract, right or duty. The actual laws were only the specific tool through which jus<\/em> was applied. This division persisted for a long time. For example, the Fourteenth Amendment of the United States Constitution, distinguishes “due process of law<\/u>”, means ‘by the law<\/u> of the land’, from “equal protection of the laws<\/u>”, means the State guarantees the same rights, privileges, and protection to all citizens. <\/p>\n 10.<\/strong> The term "Hindu law" is a colonial construct, when the British colonial officials decided that European common law system would not be implemented in India, that Hindus of India would be ruled under their "Hindu law", and Muslims of India would be ruled under "Muslim law" (Sharia<\/a>). Prior to the British colonial rule, Muslim law was codified as Fatawa-e-Alamgiri<\/em><\/a> (a compilation of law), but laws for non-Muslims –such as Hindus, Sikhs, Jains, Parsis –were not codified during the 600 years of Islamic rule. <\/p>\n EVOLUTION OF HINDU LAW<\/strong>:<\/p>\n 11.<\/strong> The Hindu law has had been evolved over successive generations, from Dharmaśāstra<\/a> धर्मशास्त्र consisting of many texts; Manusmriti<\/a>, मनुस्मृती being one of the many treatises (śāstra<\/a>) on Dharma<\/em><\/a>. The British, however, mistook the Dharmaśāstra as codes of law and failed to recognize that these Sanskrit texts were not used as statements of positive law<\/u><\/em> until the British colonial officials chose to do so. Actually, Dharmaśāstra contained jurisprudence commentary, i.e., a theoretical reflection upon practical law, but not the law of the land.https:\/\/en.wikipedia.org\/wiki\/Hindu_law – cite_note-13<\/a> The British conveniently used Manusmruti मनुस्मृती as the standard, to settle the disputes among Hindus with regard to matters of inheritance, family disputes, marriage, and Royal succession, so as to perpetuate divide amongst the Hindus. <\/p>\n 12.<\/strong> During the British colonial rule an attempt was made at "legal pluralism". Legal scholars stated that the Indian law and politics have ever since vacillated between "legal pluralism<\/u>— the notion that religion<\/u> is the basic unit of society and different religions must have “different legal rights and obligations" and "legal universalism<\/u> – the notion that individuals<\/u> are the basic unit of society and all citizens must have “uniform legal rights and obligations". While the Hindus and other non-Muslims in India favor “legal universalism” based on Parliamentary laws; however, the Muslims favor “legal pluralism” with Sharia (शरीयत) as the source of law in relation to marriage, divorce and inheritance laws, for all Muslims in India. <\/p>\n JOINT FAMILY SYSTEM: <\/strong><\/p>\n 13. <\/strong>The joint and undivided Hindu family was the normal condition of the Hindu society from times immemorial, perhaps, as a social necessity. The joint family system comes first, and law of inheritance is of later growth; the senior-most male member exercised control over all affairs of the family and its property. <\/p>\n MEANING, AMBIT OF ANCESTRAL PROPERTY:-<\/strong><\/p>\n 14.<\/strong> The Hindu law or customary law<\/u> refers to rules that are transmitted from one generation to another. Customary law means: “obligatory rules of conduct; practices and beliefs that are so vital and intrinsic a part of a social and economic system that they are treated as if they were laws<\/u>”. <\/p>\n 15.<\/strong> Sir Dinshaw Mulla (1868-1934) was an Attorney-at-Law of Bombay high court and a Member of the Judicial Committee of the Privy Council<\/a>, India. His book, titled: “Principles of Hindu Law<\/u><\/em><\/strong>”, is acclaimed as most authoritative commentary on Hindu Law. <\/p>\n 16. <\/strong>The Courts, the Privy Council and the text-books writers have indiscriminately used the expressions, ‘joint property’, ‘joint family property’, ‘ancestral property’ and ‘coparcenary property’ to denote one and the same property.<\/u> <\/em><\/p>\n A<\/em>ncestral property and separate property mans:<\/u><\/p>\n (a) Property inherited by a Hindu from his father, or father’s father or father’s fathers’ father, is ancestral property. <\/p>\n (b) Property inherited by him from other relations is his separate property. <\/p>\n 17. The Bombay High Court (in Shalini Sumant Raut & Ors vs. Milind Sumant Raut & Ors) has succinctly stated the principles of Hindu Joint family property. Some important aspects: <\/p>\n (i) A Hindu coparcenary is a narrower body than the joint family. It includes only those persons who acquire by birth an interest in the joint or coparcenary property. (Hence joint property and coparcenary property or joint Hindu family property or coparcenary property is synonymous). -page 359 <\/p>\n (ii)Ancestral property and separate property are distinct. The property inherited by a Hindu from his father, father’s father, father’s father’s father is ancestral property. The property inherited by him from other relations is his separate property. <\/p>\n Illustration:<\/u> If A inherits property from his father, his two sons B & C, would become coparceners with him as regards such ancestral property. If B has a son D and C has a son E, the coparcenary will consists of the father, sons and grandsons. -page 361 <\/p>\n (iii) The right to enforce a partition and the right of survivorship go hand in hand. <\/p>\n (iv) The Mitakshara law itself says that in the ancestral or grandfather’s property in the hands of the father, the son has equal rights<\/u> with his father; while in the self-acquired property of the father,<\/u><\/em> his rights are unequal <\/u>by reason of the father having an independent power over or pre-dominant interest in the same. [1953 AIR 495 S. C.].<\/p>\n JOINT FAMILY PROPERTY –<\/strong> DĀYABHĀGA:<\/strong><\/p>\n 18.<\/strong> The Smruti<\/em> thesis authored by Sage Yadnyawalkya and a critique written thereon by Sage Vidnyaneshwar is known as Mitakshar<\/em>. On the other hand, the Sampatti-Vibhaajan<\/em> (division of property) thesis authored by Sage Jimootvaahanis known as Dāyabhāga. <\/strong> <\/u><\/strong><\/p>\n Some eminent jurists have taken a view that the dichotomy between two systems: Mitakshara and Dāyabhāga<\/strong> was due to two different interpretations given to a single word "sapinda" (सपिंड). <\/p>\n (a) Manu has written that when a man dies, his property goes to his nearest "sapinda". The question is: What is the meaning of the word: “sapind?” <\/p>\n (b) That depends upon the meaning of the word "pinda" <\/span> <\/span> (<\/span>पिंड <\/span> <\/span>)<\/span> <\/span> <\/span>. <\/p>\n (c) According to Dayabhaga, "pinda" means the ‘rice balls’ offered in the Shraddha (श्राद्ध) ceremony to one’s deceased ancestors. <\/p>\n (d) On the other hand, according to the Mitakshara the word "pinda" does not mean the rice balls offered at the Shraddha; but it means the particles of the body of the deceased. <\/p>\n (e) The difference between the texts is based upon when one becomes the owner of property. <\/p>\n (f) The Dāyabhāga does not give the sons a right to their father’s ancestral property until after his death, unlike Mitākṣarā, which gives the sons the right to ancestral property upon their birth. <\/u><\/em><\/p>\n 19.<\/strong> The Dāyabhāga<\/em> School philosophy:<\/p>\n (i) Under the Dāyabhāga<\/em> system, sapinda is any relative who can offer ‘pindas’, the balls of rice offered during the funeral of the deceased, or at the Shraddha (श्राद्ध) ceremony. This would include cognates, the women in the family as well, allowing them to freely inherit property.<\/p>\n (ii) The Dāyabhāga<\/em> School neither accords a right by birth nor by survivorship, though a joint family and joint property is recognized. <\/u><\/em><\/p>\n (iii) It lays down only one mode of succession. <\/u><\/em> Neither sons nor daughters become coparceners at birth nor do they have rights in the family property during their father’s lifetime. However, on his death, the daughters also get equal shares along with their brothers, who all inherit as tenants-in-common. <\/p>\n (iv) Under the Dāyabhāga,<\/em> the father is regarded as the absolute owner of his property whether it is self-acquired or inherited from his ancestors. <\/u><\/em><\/p>\n – To sum up: <\/strong>Joint family property under Dāyabhāga<\/em> school:<\/p>\n (a) Succession opens to a son only after the death of the father. A Dāyabhāga<\/em> father is competent to make a testamentary disposition of the whole of property. A son has got no right to object to it, or claim partition in it. <\/p>\n (b) Property passes by inheritance only and may go to female heirs like widows, daughter etc. <\/p>\n MITAKSHARA vs. <\/strong>DĀYABHĀGA<\/strong>:<\/strong><\/p>\n 20. <\/strong>The two main streams or schools of thought in patriarchic systems were Mitakshara and Dāyabhāga<\/em> , which primarily differed in regard to rules of inheritance. While the joint family property concept under patriarchy system has been reviewed, it is important to examine the manner of succession to ancestral property under the matrilineal system, which was mainly prevalent in some parts of Madras (now Tamil Nadu, Chennai) and Cochin (now Kochi) in the State of Kerala. <\/p>\n JOINT FAMILY SYSTEM- MATRILENIAL INHERITANCE:<\/strong><\/p>\n 21.<\/strong> In the context of the Hindu Joint Family, which existed in ancient India, one cannot overlook the Definition in Section 3(1) (e) (ii) of the Hindu Succession Act, 1956 which speaks about “a common ancestress”.<\/u> <\/p>\n “Explanation”, below the section says: ‘In this clause “ancestor” includes the father and “ancestress” the mother’. <\/u><\/p>\n MATRILENIAL OWNERSHIP PATTERN:<\/strong><\/p>\n 22.<\/strong> Except in former Madras (now Tamil Nadu) & Cochin (Kochi, Kerala), all over India, a Hindu joint family, based on patriarchy, consisted of male members descended lineally from a common male ancestor, together with their mothers, wives or widows and unmarried daughters. The cord that knits the members of the family is not property but the relationship of one another. <\/p>\n 23. Marumakkattayam Tradition: In the Marumakkattayam law, which prevailed in Kerala wherein the families were joint families, a household consisted of the mother and her children with joint rights in property<\/u><\/em>. The lineage was traced through the female line<\/u>. Daughters and their children were thus an integral part of the household and of the property ownership, as the families were matrilineal.<\/em> It is applicable to a considerable section of people in Travancore-Cochin and districts of Malabar and South Kanara. <\/p>\n Under the Marumakkattayam system of inheritance, descent and succession to the property was traced through females. <\/p>\n – The joint family under matrilineal system is known as Tarawad and it formed the nucleus of the society in Malabar. <\/p>\n T<\/span>he customary law of inheritance was codified by the Madras Marumakkathayam Act, 1932. <\/p>\n (i) As per the said Act, 1932, ‘Marumakkattayam’ means the system of inheritance in which descent is traced in the female line and ‘Marumakkattayee’ means a person governed by Marumakkathayam Law of Inheritance. <\/p>\n (ii) ‘Tarawad<\/u><\/em>’ means the group of person forming a joint family with community of property governed by Marumakkathayam Law of Inheritance. <\/p>\n (iii) A Tavazhi <\/u><\/em>used in relation to the female, is defined as the group of person consisting of that female, her children and all her descendants in the female line<\/u>.<\/p>\n 25. Section 3 (1) (h) of the Hindu Succession Act, 1956, covers the system of "Marumakkattayam law" to include various enactments e.g. the Madras Marumakkattayam Act, 1932, the Travancore Nayar Act, the Travancore Ezhava Act, the Travancore Nanjinad Vellala Act, the Travacore Kshatriya Act, the Travancore Krishnanavaka Marumakkathayee Act, the Cochin Marumakkathayam Act, or the Cochin Nayar Act with respect to the matters for which provision is made in this Act. <\/p>\n 26. For some time, there had been an urge for a thorough change in the old family customs. Accordingly, the Kerala Joint Hindu Family System (Abolition) Act, 1975, was passed by the State Legislature. By this measure, the joint family system among Hindus in the state of Kerala was <\/u><\/em>obliterated.<\/em><\/u> By force of Section 4<\/a> of that Act, joint family ownership was converted into tenancy-in-common as if partition had taken place among all the members. <\/p>\n – We may read s. 4<\/a> (2) at this point.<\/p>\n (2) All members of a joint Hindu family, other than an undivided Hindu family referred to in sub-section (1) holding any joint family property on the day this act comes into force<\/u>, shall, with effect from that day be deemed to hold it as tenants in common, as if a partition of such property per capita had taken place among all the members of the family living on the day aforesaid, whether such members were entitled to claim such partition or not under the law applicable to them, and as if each one of the members is holding his or her share separately as full owner thereof.<\/u> <\/strong>The emphasis, from the point of view of the date of transformation into tenancy-in-common, is on the date of coming into force of Act 30 of 1976. From that date (<\/em>1-12-76<\/em>) onwards a division in status and a quantification of shares per capita must be deemed to have occurred. <\/em><\/p>\n 27. However, some Muslim families in Malabar and people of Lakshadweep are still governed by this customary law system of inheritance as the Abolition Act 1975 applies only to Hindus<\/u><\/em>. Muslims in Malabar happened to follow this system as they were originally Hindu converts and Lakshadweep people are believed to be persons migrated from Malabar. <\/p>\n TRADITIONAL HINDU PERSONAL LAW: <\/strong> INROADS INTO HINDU PERSONAL LAW:<\/strong><\/p>\n 29. “Hindu personal law” refers to the laws of the Hindus<\/a> as it applied during the colonial period (British Raj<\/a>) of India<\/a>. The British found neither a uniform general principle administering law for the diverse communities, nor a Pope or a Shankaracharya<\/em><\/a> (शंकराचार्य) whose law or writ applied throughout the country. Due to discrepancies in opinions of pandits<\/em><\/a>(पंडित) on the same matter, the East India Company<\/a> began training pandits<\/em> for its own Legal Service leading to the setting up of a Sanskrit<\/em><\/a>(<\/em>संस्कृत<\/em>) <\/em>College, to help them arrive at a definitive idea of the Indian legal system. <\/p>\n 30. It is from here that the modern Hindu Personal Law had its beginnings; and more appropriately so in 1772, when Warren Hastings<\/a> appointed ten <\/u>Brahmin<\/a> pandits from Bengal<\/a> to compile a digest of the Hindu scriptural law in four main civil matters—marriage, divorce, inheritance and succession<\/em>. <\/p>\n 31.<\/strong> Although the British did not directly interfere in the personal Laws of Hindus and Muslims; however, their judicial mechanism considerably influenced the growth of these laws. The plan of 1772 to place the administration of justice in the hands of English judges, although this change was innocent, inoffensive<\/em>, tended to mould traditional concepts. The English judges used to consult Pandits <\/span> <\/span>(<\/span>पंडित <\/span> <\/span>) <\/span>and Mullas <\/span> <\/span> <\/span>or Mawlawis, (मुल्ला, मौलवी –a learned teacher or doctor of Islamic law) in matters relating to personal laws of Hindus and Muslims, but nonetheless the judge was a foreigner with a foreign background. He could only make his judgment conform to what he thought was the law<\/u><\/em>; his principal task was to search out a legal solution. Needless to say, the role of judges was primarily to put an end to disputes brought before them, but when the administration of justice fell into the hands of the British, the doctrine of precedent or stare decisis <\/em>was introduced, which gradually made inroads into the scripture-rules governing the personal laws of Hindus and Muslims. <\/p>\n Thus, the law which had existed in scriptural work and treatises now came to be fixed in the “case laws” of the Courts. <\/p>\n HINDU LAW – <\/strong>NEV<\/strong>ER A RIGID LEGAL CODE:<\/strong><\/p>\n 32. <\/strong>Before the advent of the British judicial system, the Hindu law was developed by commentaries and digests written by Hindu Jurists, who interpreted the scriptural law to meet the exigencies of the changing time. <\/p>\n (i) Religious legal systems, such as Hindu law shows that law’s domain is co-extensive with life itself. While it has a high textual tradition, Hindu law was never envisaged as a fixed legal code valid for all time and place.<\/u><\/em> Key provisions such as divorce and inheritance were revised depending on region, community and the ethos of the times. <\/p>\n (ii) The concept of Dharma धर्म represents a comprehensive and consolidating view of life. This contextual specificity of Dharma permits a continuous adaptation to changing social situations and times. धारयति इति धर्मः| The word "dharma" is derived from verb "dhaaraNa" “धारणा” (beholds). <\/p>\n (iii) The principles of Hindu jurisprudence are not confined to the texts in Sanskrit. Manu attests that custom is the foremost basis of jurisprudence.<\/u><\/em><\/strong> शास्त्रांत रुढीर्बलीयसी| Customary law delimits the legal theory. <\/p>\nHINDU LAW: HISTORICAL BACKGROUND<\/h2>\n
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\n 28. In the Vedic era, women were economically treated on par with men. Wives had equal rights over their husbands’ properties. Women’s property rights were improved and defined during the time of eminent jurists like Yajnavalka, Kātyāyana<\/strong> and Narada, who strived to promote the idea of women exercising their right to property. Streedhan (स्त्रीधन), which translates literally to “woman’s wealth”, and denotes a type of property unique to women, was a term coined by the Smritikars. This was a woman’s separate property. The Honourable Supreme Court has held: “The ‘streedhan,’ is her “exclusive and absolute property.<\/u><\/em>” Vide Pratibha Rani vs. Suraj Kumar & Anr. <\/p>\n