The Joint Family Property Case

The Joint family property does not cease to be joint family property when it passes to the hands of a sole surviving coparcener. If a son is born to the sole surviving coparcener, the said properties become the joint family properties in his hands and in the hands of his son. The only difference between the right of a manager of a joint Hindu family over the joint family properties where there are two or more coparceners and the right of a sole surviving coparceners in respect of the joint family properties is that while the former can alienate the joint family properties only for legal necessity or for family benefit, the latter is entitled to dispose of the coparcenary property as if it were his separate property as long as he remains a sole surviving coparcener and he may sell or mortgage the coparcenary property even though there is no legal necessity or family benefit or may even make a gift of the coparcenary property.

If a son is subsequently born to or adopted by the sole surviving coparcener or a new coparcener is inducted into the family on an adoption made by a widow of a deceased coparcener an alienation made by the sole surviving coparcener before the birth of a new coparcener or the induction of a coparcener by adoption into the family whether by way of sale, mortgage or gift would however stand, for the coparcener who is born or adopted after the alienation cannot object to alienations made before he was begotten or adopted.

In the instant case the joint family properties which belonged to the joint family consisting of Dharma-the appellant and his brother Miragu continued to retain the character of joint family properties in the hands of Dharmathe appellant as Champabai, the widow of Miragu was still alive and continued to enjoy the right of maintenance out of the said joint family properties. Pandurang-the 1st respondent on adoption became the adopted son of Miragu and became a coparcener with Dharma-the appellant in the joint family properties. When once he became a member of the coparcenary which owned the joint family properties he was entitled to institute a suit for partition and separate possession of his one-half share in the joint family properties, of course, except those which had been alienated in favour of third parties before the adoption by Dharma-the appellant.

Clause (c) to proviso of section 12 of the Act would not be attracted in the instant case since there was no “vesting” of joint family property in Dharma-the appellant which took place on the death of Miragu and no “divesting” of property took place when Pandurang-the first respondent was adopted.

The Joint family properties continued to remain in the hands of Dharma-the appellant as joint family properties and that on his adoption Pandurang-the 1st respondent became a member of the coparcenary entitled to claim one-half share in them except those items which had been sold by Dharma-the appellant