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Report No. 174

4. Joint tenancy to be replaced by tenancy in common -

(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;

Provided that nothing in this sub-section shall affect the right to maintenance or the right to marriage or funeral expenses out of the coparcenary property or the right to residence, if any, if the members of an undivided Hindu family, other than persons who have become entitled to hold their shares separately, & any such right can be enforced if this Act had not been passed.

(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 of this Act comes into force, 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 i.e. each one of the members is holding his or her share separately as full owner thereof.

NOTES By virtue of this Act the joint family system of the Marumakkattayam Tarwad stood abolished by the operation of law and the properties of the joint family are held thereafter by the members of the joiint family as tenants-in-common as if there was a partition.1

If under the custom, a female is entitled to ask for partition or is granted a share in the property in lieu of her right to maintenance, or marriage expenses, then only she is entitled to a share in the property.2 Where there was a partition in a joint family consisting of the asessee, his wife and son prior to the coming into force of this Act, it was held that the property held by the assessee was his individual property and the wife is not entitled to any share in it. Therefore, the entire income from the property in the hands of the assessee is to be assessed in his hand as an individual.3

1. WTO v Madhavan Nambiar(K)(1988) 169 ITR 810; CWT v Padmanabhan (PM) (1989) 179 ITR 243.

2. CWT v Padmanabhan (PM)(1989)179 ITR 243;

3. Deputy CAgIT v Chidambaram (RS)(1994) 209 ITR 531(Ker) distinguishing Surjit Lal Chhabda v CIT (1975) 101 ITR 776 (SC): 1976(2) SCR 164; Krishna Prasad (C) v CIT (1974) 97 ITR 493(C); Narendranath (NV) v CWT (1969) 74 ITR 190 (SC): 1970 SC 14: Gowli Bhddanna v CIT (1966) 60 ITR 293 (SC).

After passing of Joint Family Abolition Act, 1975, section 17 of the Hindu Succession Act does not become inoperative in respect of persons living on 18.6.1956 (Date of coming into force of Hindu Succession Act) and who died after the passing of Joint Family Abolition Act on 1.12.1976. It also does not become inoperative in respect of persons who were born on or after 18.6.1956 but before 1.12.1976 and who died on or after that date.



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