History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.1179
History of Dharmaśāstra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.1179
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v4.c63.1179.1
property and the possession of one is ordinarily possession on behalf of all. Further, while the family is joint and some coparceners have many children and others have few or none or some are absent, they cannot complain at the time of partition about some coparceners having exhausted the whole income and cannot ask for an account of past income and expenditure. Kāt. (883) expressly states so.¹¹¹⁸ Moreover, the joint family property devolves by survivorship i. e. on the death of a coparcener his interest lapses and goes to the other coparceners, subject to this that if the deceased has left a son, grandson, or great-grandson, the latter represents and occupies the place of the deceased coparcener when a partition takes place. A female cannot be a coparcener (even if she be the wife or the mother). Another characteristic is that each coparcener has a right to enforce a partition. The affairs of the family are managed by the father and if he be very old or dead, by the senior brother or member or by any other member with the consent of the senior member (Nār., dāyabhāga 5 and Śaṅkha quoted above in note 1067). The manager is called *kartā* in modern times though the smṛtis and digests employ words like *kuṭumbin* (Yāj. II. 45), *gṛhin*, *gṛhapati*, *prabhu* (Kāt. 543) and not *kartā*.
v4.c63.1179.2
He has special powers of disposition (by mortgage, sale or gift) of family property in a season of distress (for debts), for the purposes and benefit of the family (maintenance, education and marriages of members and other dependents) and particularly for religious purposes (śrāddhas and the like).¹¹¹⁹ The father has the same powers as manager and certain other special powers, which no other coparcener has. The father can separate his sons from himself and also among themselves if he so desires, even if they do not desire to separate¹¹²⁰ (Yāj. II. 114); while an ordinary coparcener can only separate himself from the family. The father can make within reasonable limits gifts of ancestral movable property without¹¹²¹ the consent of his sons for performing indispensable acts of duty and for purposes laid down by the texts, such as gifts through affection (to wife, daughter, son or the like), the support of the family and relief from distress. The father can make a gift of even immovable property within¹¹²² reasonable limits for pious purposes only (such as to a family idol or to an idol in a temple at the time of obsequies). The father can sell or mortgage the joint family property to pay off an antecedent debt contracted by him for his own personal benefit, provided it is not illegal or immoral (vide p. 448 above).
v4.c63.1179.3
No coparcener (except the father or manager as stated above) can dispose of his undivided interest by gift, sale or mortgage according to the strict theory of the Mitākṣarā except with the consent of the other coparceners. This right to object to alienations made without consent or made without legal necessity is another characteristic of the joint Hindu family under the Mitākṣarā. Bṛ. (S. B. E. 33 p. 384 verse 93) says¹¹²³ "whether kinsmen are joint or separate they are alike as regards immovable property, since a single one from among them has no power in any case to make a gift, sale or mortgage of it." But in modern times the courts in Bombay, Madras and the Central Provinces have loosened this strict rule by holding that a coparcener may sell, mortgage or alienate for *value* his undivided interest in coparcenary property without the consent of the other coparceners¹¹²⁴ and the courts have allowed the undivided interest of a coparcener in joint family property to be attached at the instance of a creditor for the individual debts of a coparcener. This is one of the most serious departures from ancient and medieval Hindu Law made by the Courts on the ground of equity. One more right of all members of the joint Hindu family is the right to be maintained from the property and income of the joint family.
v4.c63.1179.4
Such matters as the remedies of the purchaser or mortgagee from an individual coparcener are here left out of consideration as appropriate only in a treatise on modern Hindu Law.