Ram Charan Mitra.

The law of joint property and partition in British India online

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at the death of the father and the property con-
stantly remains undivided for several generations
though every member of every generation has a
legal right to an undivided share in it. The
domain thus held in common is sometimes adminis-
tered by an elected manager, but more generally,
and in some provinces always, it is managed
by the eldest agnate, by the eldest representative
of the eldest line of the stock. Such an assem-
blage of joint proprietors, a body of kindred
holding a domain in common, is the simplest form
of an Indian Village Community, but the com-
munity is more than a brotherhood of relatives
and more than an association of partners."

Mr. Mayne speaking of the antiquity of the
joint family system, says : — '"■'

"The joint family is only one phase of that
tendency to hold property in community, which, it
is now proved, was once the ordinary mode of
tenure. The attention of scholars was first drawn
to this point by the Sclavonian village communi-
ties. But it is now placed beyond doubt that joint
ownership of a similar character is not limited to

Mtync's Hindu Law and Usage yih Kd. §8.


Sclavonian or even to Aryan races, but is to be
found in every part of the world where men have
once settled down to an agricultural life."

Even the most careless observer, at every step
of his progress through India, would be struck at
the general prevalence of the system of living in
family groups. The reports of the proceedings of
our Courts of law teem with cases of joint owner-
ship. The law of joint property, therefore, has
here an importance which it has not in other


JOINT Hindu Family.
The early law of joint property in India vvouUl ^'^'"'y law of

II II f : • 1 T- • joint pro-

be the early law ot property in general, ror, m perty.

the dawn of history all properly everywhere was
joint, and in India, as elsewhere, the property con-
sisted of the same description of things — pasture-
grounds, cattle, &c., &c. Sir Henry Maine in
his work on " Ancient Law " has shewn that the
view of the primeval condition of the human race
which is known as the Patriarchal theory is estab-
lished by the evidence derived from comparative
Jurisprudence, and he says* that '' the legal testi-
mony, comes nearly exclusively from the institu-
tions of societies belonging to the Indo-European
stock, the Romans, Hindoos and Sclavonians sup-
plying the greater part of it." But though the
primitive condition of man was everywhere the
same, what strikes us at the present moment is
that some countries are considerably in advance
of others in point of civilization. This is neither
the place nor the occasion to enter into a dis-
quisition on the causes that lead to such results.
"The difference between the stationary and pro-
gressive societies is one of the great secrets which
enquiry has yet to penetrate." Speaking of the
expansion of law in India, Sir Henry Maine saysf
"We can see that Brahminical India has not
passed beyond a stage which occurs in the history
of all the families of mankind, the stage at which
a rule of law is not yet discriminated from a rule
of religion.''

* p. 1^3. t p.


Patriarchal In the natural order of events, tlie patriarchal

*'^' ^' taniily, consisting of tlie father and his sons and

in which the influence of the fatiier (the patcr-
familias) was supreme, must have preceded the
joint family and the village communilv. Upon
the death of the patriarch or the father, ihe fami-
ly consisted of brothers and their sons, and when
they chose to live together, they lived as a joint
Joint family, family. The joint family thus became tlie second
stage of living in groups. The eldest of the
brothers, as the head of the family, swayed all its
affairs ; but his influence was very different from
that of the father in a Patriarchal family, in the
infancy of the world, when hunting was a man's
chief occupation and his wants were few, the fami-
lies naturally grouped together for their own

Origin of protection from the inroads of their neiu;hbours,
village com- ' , . ,. , en

munities. ^i^d hence arose the system or village com-
Partition of As time advanced the individual members of

property a . .,, • • • .1 • • . c T

later deve- the Village communities, vis., the joint ramilies
lopment. therein comprised, saw that the disadvantages of
their combinations outweighed their advantages
and began to separate. So again, in course of
time the practice of living in joint families has
been giving way to the ideas of greater comforts
in separate living with greater freedom of action.
As the peculiar features of living together in
patriarchal and family groups as well as in com-
munities were everywhere the same and as several
of our present laws owe their origin to this mode
of living in ancient times, it may be useful to c[uote
certain passages on the subject from Sir Henry
Maine's work on " Ancient Law."
Extent of Speaking of the primitive family, he says*

pow'eT.^ ^ " T'"*^ points which lie on the surface of the

* p. 123.

CHAP. II.] JOINr lllNDi; 1AM 11. V. 23

history are lliese : — Tlie eldest male parent —
the eldest ascendant — is absolutely supreme in
his household. His dominion extends to life
and death, and is as unqualified over his children
and their houses as over his slaves ; indeed
the relations of sonship and serfdom appear
to differ in little beyond the higher capacity which
the child in blood possesses of becoming one day
the head of a family himself. The flocks and Son's
herds of the children are the Hocks and herds of f[°hel^t^
the father, and the possessions of the parent, which
he holds in a representative rather than in a pro-
prietary character, are equally divided at his death
among his descendants in the first degree, the
eldest son sometimes receiving a double share
under the name of birth-right, but more generally
endowed with no hereditary advantage beyond
an honorary precedence." Speaking of the change
gradually brought about in the position of the son
from one ol absolute dependance on the father,
that eminent Jurist says"'- — " So far as regards the
person, the parent, when our information com-
mences, has over his children the i?is vitae necis-
que, the power of life and death, and a fortiori of
uncontrolled corporal chastisement ; he can
modify their personal condition at pleasure ; he
can give a w-ife to his son ; he can give his daughter
in marriage ; he can divorce his children of
either sex ; he can transfer them to another
family bv adoption ; and he can sell them.
Late in the Iniperi.il period we find vestiges Changes
of all these powers, but they are reduced within f,7)oduced
very narrow limits. The unqualified ricrju of in respect

1 .• 1 .• ^1 u • I . f of father's

domestic chastisement has become a right ot j owers
bringing domestic offences under the cognisance
of the civil magistrate ; the privilege of dicta-


p. 138.


ting marriage has declined into a conditional
veto; the liberty of selling has been virtually
abolished, and adoption itself, destined to lose
almost all its ancient importance in the reformed
system of Justinian, can no longer be effected
without the assent of the child transferred to the
adoptive parentage. In short, we are brought
very close to the verge of the ideas which have
at length prevailed in the modern world. But
between these widely distant epochs there is an
interval of obscurity, and we can only guess at
the causes which permitted the Patria Potestas
to last as long as it did by rendering it more
tolerable than it appears. The active discharge
of the most important among the duties which
the son owed to the State must have tempered
the authority of his parent, if they did not annul
it. We can readily persuade ourselves that the
paternal despotism could not be brought into play,
without great scandal, against a man of full age
occupying a high civil ofifice." And again* "many
of the causes which helped to mitigate the strin-
gency of the father's power over the persons of
his children are doubtless among those which
do not lie upon the face of history. We cannot
tell how far public opinion may have paralysed
an authority which the law conferred ; or how
far natural affection may have rendered it endur-
able. But though the powers over the persons
may have been latterly nominal, the whole tenour
of the extant Roman jurisprudence suggests that
the father's rights over the son's property were
always exercised without scruple to the full extent
to which they were sanctioned by law. There
is nothing to astonish us in the latitude of these
rights when they first show themselves. The

"' p- 141.


ancient law of Rome forbade the Children under
Power to hold property apart from their parent,
or (we should rather say) never contemplated
the possibility of their claiming a separate owner-
ship. The father was entitled to take the
whole of the son's acquisitions, and to enjoy the
benefits of his contracts, without being entangled
in any compensating liability. So much as this
we should expect from the constitution of the
earliest Roman Society ; for we can hardly form
a notion of the primitive family group unless we
suppose that its members brought their earnings
of all kinds into the common stock, while they
were unable to bind it by improvident individual
enyjaiiements. The true enigma of the Patria Curtailment

n y , 1 • 1 1 1 • 1 1 Ot parental

rotes tas does not reside here, but m the slowness authority,
with which these proprietary privileges of the
parent were curtailed, and in the circumstance that,
before they were seriously diminished, the whole of
the civilised world was brought within their sphere.
No innovation of any kind was attempted till the . ;ci

first years of the Empire, when the acquisitions
of soldiers on service were withdrawn from the
operation of the Patria Potestas, doubtless as part
of the reward of the armies which had over-
thrown the free commonwealth. Three centuries
afterwards the same immunity was extended to the
earnings of persons who were in the civil employ-
ment of the State. Both changes were obviously
limited in iheir application, and ihey were so con-
trived in technical form as to interfere as little as
possible with the principle of Patria Potestas. A
certain qualified and dependent ownership had
always been recognised bv the Roman law in the 0'"'6"' of
perquisites and savings which slaves and sons property
under power were not compelled to include in the
household accounts, and the special name of this
permissive property, Peculium, was applied to



the acquisitions newly relieved from Patria Po-
testas, which were called in the case of soldiers
Castrense Peculium, and Ouasi-Castrense Pecu-
Hum in the case of civil servants. Other modi-
fications of the parental privileges followed, which
showed a less studious outward respect for the
ancient principle. Shortly after the introduction
of the Quasi-Castrense Peculium, Constantine the
Great took away the father's absolute control over
property which his children had inherited from
their mother, and reduced it to a usufruct or life-
interest. A few more changes of slight import-
ance followed in the Western Empire, but the
furthest point reached was in the East, under
Justinian, who enacted that unless the acquisitions
of the child were derived from the parent's own
propertv, the parent's right over them should not
extend beyond enjoying their produce for the
period of his life."
Trantition And again* " Nor is it difficult to see what is

from status ^i ^- i ? j u- u i u

to contract, the tie between man and man which replaces by
degrees those forms of reciprocity in rights and
duties which have their origin in the family. It is
Contract. Starting, as from one terminus of his-
tory, from a condition of society in which all the
relations of Persons are summed up in the rela-
tions of F'amily, we seem to have steadily moved
towards a phase of social order in which all these
relations arise from the free agreement of Indi-
viduals. In Western Europe the progress achieved
in this direction has been considerable. Thus
the status of the Slave has disappeared — it has
been superseded by the contractual relation of
the servant to his master. The status of the
Female under Tutelage, if the tutelage be under-
stood of persons other than her husband has also

* p. 169.


ceased to exist ; from her coming of age to her
marriage all the relations she may form are rela-
tions of contract. So too the status of the Son
under Power has no higher place in the law of
modern European societies. If any civil obligation
binds together the Parent and the child of full age,
it is one to which only contract gives its legal
validity. The apparent exceptions are exceptions
of that stamp which illustrate the rule. The
child before years of discretion, the orphan under
guardianship, the adjudged lunatic, have all their
capacities and incapacities regulated by the Law
of persons."

I have quoted these passages at length in the Analogies

T . Ill 1 • I between

hope that, they will enable the reader in what Roman and

follows, to perceive the close analogy that exists Hindu Juris-
' r . s>j prudence.

between these ancient laws and the laws ot mo-
dern India. There is the same injunction on a son
to obey his father's mandates. There is the same
interdiction against a father's alienation of joint
family-property to the destitution of his children.
There is the same power given to a father over
his son's acquisitions. There is the same decla-
ration of the incompetency of women to hold
property. There is the same incorporation of
strangers into the family by adoption. There is
the same exemption of property acquired without
detriment to paternal property from the father's

Professor Krishna Kamal Bhattacharya in Relics of
his Tagore Law Lectures for 1884-8^ on the Joint village com-

o , . m unity in

Hindu Family has shewn that in India, as else- india.
where, village communities existed in for.ner days,
and that even at the present day in the Province
of Madras, the High Court of that Presidency
has to decide cases in whicli collective owner-
ship in the village lands and the custom of perio-
dical redistribution of the arable soil, (which


are the characteristics of a village community,
pure and simple), are asserted by parlies to suits.
Professor Julius Jolly in his Tagore Law Lectures
for 18S3 speaking' - ' of the various forms of joint
family in India says —

" The vast continent of India may be" said to
exhibit an epitome of all possible forms of owner-
ship, from the corporate property of the village
community to the absolutely private property of
the individual,"

Mr. Mayne in his learned work on Hindu Law
and Usage also speaks of the existence of village
communities in the Punjab and traces the right
■^ ' of pre-emption to them. He says| "Three forms

of the corporate system of property exist in India;
the Patriarchal Family, the Joint Family and the
Village Community. The two former, in one shape
or other, may be said to prevail throughout the
length and breadth of India. The last still flour-
ishes in the north-west of Hindoostan. it is
traceable, though dying out, in Southern India.
It has disappeared, though we may be sure it for-
merly existed, in Bengal and the upper part of
the peninsula." And again "the Village system
of India may be studied with most advantage in
the Punjab, as it is there that we find it in its
most perfect, as well as in its transitional, forms.
It presents three marked phases, which exactly
correspond to the changes in an undivided family.
The closest form of union is that which is
Communal known as the communal zemindari village. Under
system. this system 'the land is so held that all the village

co-sharers have each their proportionate share in
it as common property, without any possession of,
or title to, distinct portions of it; and the measure
of each proprietor's interest is his share as fixed

* p. 88. t Seventh Ed. S. 223.


by the customary law of inheritance. The rents
paid by the cultivators are thrown into a common
stock, with all other profits from the village lands,
and after deduction of the expenses the balance
is divided among the propri('tors according to
their shares.' This corresponds to the undivided
family in its purest state. The second stage is Pattidan
called the pattidari village. In it the holdings ^
are all in severalty, and each sharer manages his
own portion of land. But the extent of the share
is determined by ancestral right, and is capable
of being modified from time to time upon this
principle. This corresponds to the state of an
undivided family in Bt^ngal. The transitional
stage between joint holdings and holding in sev-
eralty is to be found in the system of redistribu-
tion, which is still practised in the Pathan communi-
ties of Peshawar. According to that practice
the holdings are originally allotted to the indi-
vidual families on the principle of strict equality.
But as time introduced inequalities with reference
to the numbers settled in each holding, a periodi-
cal transfer and redistribution of holdings took
place. This practice naturally dies out as the
sense of individual property strengthens, and as
the habit of dealing with the shares by mortgage
and sale is introduced. The share of each family
then becomes its own. The third and final stage
is known as the Bliaiachari village. It agrees with Bhaiachan

I 7^ ,, • 77 • r 1 I system.

the Fattidiiari rorm, masmucn as each owner
holds his share in severally. But it differs from
it, inasmuch as the extent of the holding is
strictly defined by the amount actually held in
possession. All reference to ancestral right has
disappeared, and no change in the number of the
co-sharers can entitle any member to have his
share enlarged. His rights have become absolute
instead of relative, and have ceased to be


measured by any reference to the extent of the

whole village, and the numbers of those by whom

it is held. This is exactly the state of a family

after its members have come to a partition."

Relics of y^(. (|-,p present time in India villagje communies

munities have nearly disappeared, but many of the laws

now m full ^vhich they brought into existence are yet in full

force. The restraints on alienation of coparcenary

property under the Mitakshara Law are some of the

relics of the olden times and under the British ad-

They seem ministration would seem to be destined to con-

destined so tinue. In this respect there is a vast difference

to continue r

under Bri- between the past and the present age. In lormer
tish rule. times commentators, under the guise of expound-
ing original Institutes which were beyond the
reach of the majority of the people, promulgated
laws as seemed tO them best suited to the chang-
ing times. The differences in the laws of the
different provinces thus owe their origin to the
different customs which had grown in those
localities — the commentators simply validating
the customs as good law. But under the present
administration, such changes with the changeful
times seem impracticable except by the inter-
position of legislature.
Constitu- As tlig subject of the joint Hindu Family has

Hindu joint already been discussed with great ability and
Family. scholarship by Professor Krishna Kamal Bhatta-

charyya, I shall not attempt to dwell upon it
but shall simply refer to his book. The Professor
after a collation of all the authorities on the point
says in Lecture III, p. 138. "From all these
circumstances taken together, from the indication
furnished by Baudhavana's text and from the
actual state of things existing at the present day,
I conclude that in forming a definite notion of a
joint family with regard to its constitution, we
may view it as a group of individuals related to


one another by their descent from a common
ancestor within seven generations in the ascend-
ing line." The text of Baudliayana referred to
by the Professor in the above quotation runs as
follows — "'Paternal great-grandfather, paternal
grandfather^ father himself, brothers of the whole
blood, a son born in a wife of the same caste,
son's son, and son of a son's son, all these parti-
cipators of an undivided claija or heritage— are
spoken of as sapindas ; — the participators ol a
divided daya or heritage, are spoken of as
sakulyas. Issue of the body existing, it is on
them that property devolves, in the absence of
a Sapinda, a Sakulya, — and in his absence the
preceptor, or the disciple, or the house-hold priest
should take. In absence thereof the kine." In
the above quotation " the group of individuals
related to one another " must be understood as
comprising individuals every one of whom is a
descendant of the common ancestor in an un-
broken male line. Females have always been
considered as members of the family to which
they are transferred by marriage,' but so long as
they are unmarried they continue members of
their father's family. In the same way, the wives
of the male members are taken to be members of
the family. So too, sons incorporated into the familv
by adoption become members of the family. Thus Affiliation
\\\ Ballabh Das v. Siuider Das (1877)'!. L. R. byadoption.
1 All. 429 it is said. — "The joint Hindu family
is constituted by the union of descendants by
heirship from some common ancestor, and there
must be conneciion among its members bv blood

(0 This would be clear upon a reference to ihe social customs of
the Hindus. The question was also considered by the late Justice
Dwarkanath Milter in Chuiitiernath Moitra v. Kriiio Komnl Singh (1871)
15 W. R. ^57. Karlirk Chuiuicr Ghtittuck v. S^noda SunJrrv Del i
(1891) 1. L. R. 18 Cal. 642 1646).


relationship, adoption, and marriage ( ihe italics
are mine)." To the same effect are the decisions
in SJiam Kuar v. Gayadin (1877) '• L- ■^- ' '^''•
2^^ \ Joy KisJwre Chowdhury v. Panclwo Baboo
(1879)40. L. R. 538; Ravibliat v. Lakskman
Chinta?nan (1881) 1. L. R. 5 Bom. 630 ; ^//m
S linker Mottra v. /w/Zz Koniiil Mopsinndar (i8?!o)
1. L. R. 6 Cal. 256 ; 7 C. L. R. 145 affirmed by
the Privy Council in 1883, 1. L. R. 10 Cal. 232 ;
Siirjo Kant Nundi v. Moliesli Lkunder Dutt
(1882) 1. L. R. 9 Cal. 70; Miikundo Lall Roy v.
Bykiint Nat/i Roy (1880) I. L. R. 6 Cal. 289;
7 C. L. R. 478. Anandi v. //«;V ^^/Zicz (1909)
I. L. R. 33 Bom. 404 (407).



rhough a joint: Hindu family usually consists who are the
of a large number of male and female members, pgr^''*^^"
yet each and every one of them would not be en-
titled to a share of the family property or to any
interest in it on a partition. The family property
in the language of jurists is called coparcenary
property. But under the Mitakshara law the
phrase "ancestral property" is used to denote such
property. It is true that the phrase "ancestral
estate" or "ancestral property" would ordinarily
mean property which descended upon another
from an ancestor however remote or of whatever
sex. But, as Mr. Mayne says, "this is not what
is known for this phrase as ancestral property.
That term in its technical sense is applied to
properly which descends upon one person in such
a manner that his issue acquire certain rights in
it as against him."

Now, what is this property and who are the
persons who acquire such vested right ? This
brings me to the consideration of the second of
the questions discussed by X'^ijnaneswara in chapter
I. section I.

The author deals with this question thus : Obstructed

I I 1 i: .(!•.»• Ki '"^"^ urobs-

— In para. 2, he dehnes 'heritage as wealth tructedheri-
which becomes the propertv of another by reason ''"^se-
of relation to the owner. In para. 3 he divides
heritage into two classes, unobstructed 5!nffcT5^7
and obstructed ^nfrTS^? and says '' The wealth



of the father or of the paternal grandfather, be-

Online LibraryRam Charan MitraThe law of joint property and partition in British India → online text (page 6 of 58)