(3) jointness: There is a general presumption
(3) Any person related by adoption. (4) Dependants.
(5) Son born out of marriage between a male Hindu and Christian woman under Special Marriage Act, 1954.
(1) The wife or widows of deceased male members and (2) Maiden daughters. One of the special features of joint family is that it includes illegitimate children also. They are treated to be the members of their father’s family. Sometimes married widowed daughters also settle in the joint family and are treated as members thereof, entitled to maintenance.
Presumption of jointness:
There is a general presumption of jointness of every Hindu family.
The Orissa High Court has observed that the leading principle of Hindu law is that in absence of proof of division the presumption is that every Hindu family is joint in food and worship and estate. The presumption is stronger in case of brothers than in case of cousin and the farther one goes from the founder of the family, presumption becomes weaker and weaker. Unless it is proved contrary, a family amongst Hindus is presumed to be joint.
If one takes the plea of partition, he has to prove it. The following presumptions can be taken into consideration as to the family is joint or separate or whether a particular property belongs to the joint family or to an individual coparcener:— (1) It is a general presumption that every Hindu family is joint in food, worship and estate. Hence burden of proof is on the person who alleges separation. The members of a family may reside separately and mess apart; still they may remain joint in estate. Although separate dwelling and mess is not the conclusive proof of separation still they are material factors along with the other facts to determine partition. The strength of presumption of union necessarily varies in each case, it is stronger in case of brothers, but it lessens in case of cousins and other relatives. (2) Once a family is admitted to be joint, it is presumed to be joint in absence of separation.
In case of real brothers constituting a joint Hindu family, the presumption of jointness is very strong. It is for the persons alleging severance of joint status to prove it. (3) Where it is proved or admitted that partition has been effected, the burden of proving that the estate remains joint is on the person who alleges it. (4) Where it is proved that the family is joint and it possesses joint property, the presumption is that all the property is joint. But from the mere fact that a family is joint, no presumption can be drawn that it possesses joint property or that it has some property. Existence of a joint family does not lead to inference that the property held by any member of the family is joint.
Burden of proof:
When it is proved that the entire family has a common dwelling and is jointly living the onus is on the person who is setting up the case of severance.
But the law may vary according to the circumstances of a case and no abstract proposition of law governing every case, howsoever the facts may be different, can be laid down. Where at the time of acquisition of a particular property, the joint family had sufficient nucleus for acquiring it, the property in the name of any member of the joint family should be presumed to be acquired from out of joint family funds so as to form part of the joint family property unless the contrary is shown. Where any property is acquired in individual capacity by the members of a joint family, that does not constitute joint property. But if any member claims it to be joint, he has to satisfy the test of nucleus, i.
e., the property was acquired with the aid of joint family nucleus. In case of failure to establish this, a presumption to the contrary will be drawn.
Management of Joint Family:
The affairs of a joint family are managed by the head of the joint family, who is called the manager or ‘Karta’. The father, if living would generally be the ‘Karta’ of the joint Hindu family. He is the representative of the family and is considered supreme in the management of the property. There is also the presumption that the Karta would be elder most member of the family. The members of Mitakshara joint family enjoy certain rights such as (i) the right to maintenance and residence; (ii) the right to claim partition; (iii) the right to call for an account as incidental to the right; and (iv) the right to joint possession and enjoyment, etc.