Page 12 - DTPA Journal Aug 18

DTPA - J | 2017-18 | Volume 3 | August 2018

property from his three immediate paternal ancestors State Bank of India v. Ghamandi Ram – AIR 1969 SC
holds it, and must hold it, in coparcenary with his sons, 1330.
son's sons, and son's son's sons. Dipo Vs. Wassan
7. Partition : To divide and distribute assets /
Singh – AIR 1983 SC 846 at 847-48; Arjun Singh v. property amongst the members of the family is called
Pingle Devi – AIR 1993 HP 34; Om Prakash Vs. Sarvjit
partition. Now it has to be total and by metes and
Singh – AIR 1995 HP. 92. The share, which a
bounds. It can be oral. However, if in writing would
coparcener obtains on partition of ancestral property, is
attract stamp duty. It can be unequal and not in
ancestral property as regards his male issue. They take accordance with share of each member. It need be
an interest in it by birth (Lal Bahadur v. Kanhaiya Lal,
recognised under Section 171 of the Income-tax Act for
(1907) 29 All 244: 34 IA 65; Chatturbhooj v. Dharamsi,
those which have been hithertofore assessed.
(1885) 5 Bom HCOCJ 128: Rulla Ram v. Amar Singh,
AIR 1994 HP 102 relying on AIR 1987 SC 558 and AIR 8. Family Arrangement : When a partition is
1986 Pat 1753). effected between the co-parceners / members of a joint
Hindu Family, the partition deed attracts stamp duty
5. Accumulations of income of ancestral property,
under the State Law. However, it can be avoided by
property purchased or acquired out of income or with
arriving at a family arrangement in between the
assistance of ancestral property, the proceeds of sale of members. The family arrangement may be even oral.
ancestral property, and property purchased out of such
If the terms of the family arrangement are reduced to
proceeds, or obtained in lieu of such property, are
writing; a distinction should be made between a
ancestral property. (Maya Ram v. Satnam Singh, AIR
document containing the terms and recitals of a family
1967 Punj 353). It is well established that sons, arrangement made under the document and a mere
grandsons and great-grandsons acquire a vested
memorandum prepared after the family arrangement
interest not only in the income and accretions of
had already been made, either for the purpose of the
ancestral property, which accrued after their birth, but record or for information of the Court for making
also in the income and accretions, which accrued prior
necessary mutation. It has been held that in such a
to their birth. (Isree Persad V. Nasif Koover - AIR 10
case the memorandum, itself, does not create or
Cal 1017 at 1021; Jagmohan Das v. Mangal Das) 11
extinguish any rights in immovable property and is,
Mad 246.
therefore, not compulsorily registrable. (Refer Tek
6. According to the Mitakshara School of Hindu Law all Bahadur Bhujil – AIR 1966 SC 292; Sahu Madho Das v.
the property of a Hindu joint family is held in collective Mukund Ram – AIR 1955 SC 481; Vijay Kumar v.
ownership by all the coparceners in a quasi-corporate Sanjay Kumar – AIR 2003 Delhi 168; Digambhar Adhar
capacity. The textual authority of the Mitakshara lays Patil v. Deoram Girdhar Patel – AIR 1995 SC 1728,
down in express terms that the joint family property is AIR 1973 Allahabad 158, AIR 1988 AP 147; AIR 1966
held in trust for the joint family members then living and SC 1836; AIR 1966 (SC) 252; AIR 1997 (Raj.) 211;
thereafter to be born (See Mitakshara, Chapter 1.1-27). AIR 1998 (Raj.) 348 and Kale and others v. Dy.
The incidents of co-parcenership under the Mitakshara Director of Consolidation and Others, AIR 1976 SC 807.
law are : first, the lineal male descendants of a person 9. The family arrangement must be a bona fide one so
up to the third generation, acquire on birth ownership in
as to resolve family disputes and rival claims by a fair
the ancestral properties of such person; secondly that
and equitable division or allotment of properties
such descendants can at any time work out their rights between the various members of the family; (2) It
by asking for partition; thirdly, that till partition each
must be voluntary and should not be induced by fraud,
member has got ownership extending over the entire
coercion or undue influence; (3) The family
property conjointly with the rest; fourthly, that as a result
arrangement may be oral in which case no registration
of such co-ownership the possession and enjoyment of is necessary; (4) It is well settled that registration
the properties is common; fifthly, that no alienation of
would be necessary only if the terms of the family
the property is possible unless it be for necessity,
arrangement are reduced into writing. Which create or
without the concurrence of the coparceners, and sixthly, extinguish any rights in immovable properties and
that the interest of a deceased member lapses on his
would fall within the mischief of section 17(1)(b) of the
death to the survivors. A coparcenery under the
Registration Act; (5) The members who may be parties
Mitakshara School is a creature of law and cannot arise
to the family arrangement must have some antecedent
by act of parties except in so far that on adoption the
title, claim or interest even a possible claim in the
adopted son becomes a co-parcener with his adoptive
property which is acknowledged by the parties to the
father as regards the ancestral properties of the latter.”
settlement. Even if one of the parties to the
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