Of course only the family property can be divided, and if any of the
members make a claim on the ground of self-acquisition to exclude
anything from partition, this claim must be considered; and if it is
upheld, that portion of the property must be excluded from partition.
These claims sometimes give rise to a good deal of litigation, and are
not always easy to determine. It must be borne in mind, however, that
self-acquired property becomes family property as soon as it has once
descended. Thus if a man by a separate trade earns Rs.10,000, and dies
leaving two sons and the son of a third son, these persons form a joint
family, and the Rs.10,000 is family property. So also family property
which has been partitioned remains family property still. Thus if A, a
bachelor, gets on partition a piece of land and afterwards marries and
has sons, under the Mitacshara law the father and sons form a joint
family as soon as the sons are born, and to this family the land
belongs.
Inheritance.
When we come to deal with the question of what shares are taken on
partition, it is convenient to follow the example of the Hindu
commentators, and to treat the subject of inheritance in conjunction
with it. The relative importance of these two subjects has not always
been perceived, particularly by the early English writers on Hindu law.
H. T. Colebrooke, the learned and accomplished translator of the
Mitacshara and the Dayabhaga, published the two treatises together in
one volume which he called _The Law of Inheritance_. But these
treatises, although they deal incidentally with inheritance, are both
described by their authors as treatises on partition only; and this, no
doubt, is because the subject of inheritance, apart from partition, is
of comparatively small importance. Inheritance is the transfer of
ownership which occurs at and in consequence of a death. It follows from
this that in a Mitacshara joint family there is no inheritance. The
death of a member of the family makes no change in the ownership; not
any more than the death, of a fellow in the ownership of a college, or
of a shareholder in the ownership of a railway company. In a Dayabhaga
family there is a case of inheritance whenever a member dies. The share
of that member descends to his heir. But here, again, no perceptible
change in the affairs of the family is occasioned thereby. The enjoyment
of the family property is no more affected thereby than by a death in a
Mitacshara family. It is only when a partition takes place that the
devolution of the shares by inheritance has to be traced. Inheritance,
therefore, apart from partition, has not to be considered when we are
dealing with family property under either system.
Public-domain text, read in full here on John Shaqi.
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