Author: Vaishnavi Navghare.
Heart of the Hindu law lies in the ancient scripts and texts written by our scholars and erudites. Whether it be our daily routine, marriage rituals, duties of husband, father, wife, or weather it be the matter of maintenance and property all have there roots in ancient Hindu text. Property matters are always in limelight in any family not only in contemporary era but since ages. The questions, what is self acquired property? whether the property gained by the individual by his own learning falls under the category of ‘coparcenary property’ or ‘self acquired property’? was always unsolved till the Hindu Gains of learning Act 1930 was enacted, Answers to these question is in the Hindu gains of learning act 1930. This act gave the legal validity to the self acquired property.
This research article not only analyses the property rights of individual in Hindu undivided family, but also critically examines the importance and need of Hindu gains of learning act through various cases and judgments.
Meaning of gains of learning
The gains of learning signifies all the property acquired by the person by his or her own learning and education he gained. In Hindu texts it is also called as ‘vidyadhana’. ‘vidya’ (education or learning),‘dhana’ (property). Here learning refers to any form of education whether its general, special, elementary or higher.
Through this learning or education whatever profession or trade the person will pursue, the property gained by that profession comes under the ambit of Gains of Learning, which is ultimately becomes the self acquired property of the person. No other person from the Hindu Joint family have a right over it.1
Significance of Hindu joint family
“The Hindu joint Family consists of all members descended lineally from a common male ancestor together with their mothers, wives or widows and unmarried daughters”.2 The Hindu joint family includes four generation male members as coparcener and others as members of joint family.
After 2005 amendment in the daughters also became coparcener in Hindu joint family getting equal share as son. In short the coparcenary property includes joint family property and joint family ancestral property.3
Difference between coparcenary and self acquired property
Coparcenary property usually comes by devolution upon surviving coparceners i.e through doctrine of survivor-ship. And self acquired property is either earned by the person through is education or learning or through gift or sale or will. Over coparcenary property have coparceners of the family have joint possession and title over it. Whereas over self acquired property only the owner or the person who have earn it have the sole possession and title over it. Coparceners can disposed off their share from the joint property but in self acquired property only the owner have the right of disposal.
The coparcenary property includes ancestral property, property acquired with the assistance of ancestral Property (Doctrine of Accretion), Property acquired at the cost of ancestral property (Doctrine of Detriment), Property which is separate of a coparcener but voluntarily thrown by him into the common stock of joint family property (Doctrine of Blending). In contrast the self acquired property is separate property earned by learning. But this difference was unclear before 1930 and therefore their where conflicting views related to same.4
Conflicting views from ancient scholars
There were many conflicting views in ancient times also when it comes to whether self acquired property comes in the ambit of coparcenary property or not? While Narada provided that “He who maintains the family of a brother while that brother was engaged in study, shall get a share from the latter’s money that he makes with the help of this learning.” Some of the Shastric texts provided that “what is acquired at the expense of the joint family funds would be partible at the instance of the family members, while providing for distinction between general and special learning.”
Manu and Mayukha were having totally the different views. Jimutvahana says that “What a brother has acquired by his labour without using the patrimony, he need not give up to co-heirs; nor what has been gained by science.” Also it has been given by Vyasa that “what a man gains by his own ability without relying on the patrimony, he shall not give up to the co-heirs, nor what he gained by learning” we can see that not only in the contemporary world but the ancient era was also having ambiguity about the same.5
Earlier position of self acquired property
Before 1930 there was hardly any concept of self acquired property. There was no legal validity as separate property to property earned by the person through his learning. The general rule was any property earned or acquired through funds of joint family property itself becomes the joint family property. This rule was unjust as according to thus concept no person was able to have self acquired property which he earned through his efforts.
This concept was in itself very weak as it was putting burden on children, their consent that whether they want to share the property was absent. Therefore in order to change this rule slowing the recognition to self acquired was given to secure the individual right of the person.6
Judicial position before the enactment of the Act of 1930
Before 1930 there was a simple rule if the person completes his education through the funding from the joint property then property acquired from that learning will fall in the ambit of joint property. And if the education of the person is not funded through the joint property then it will fall under the ambit of self acquired property, as it was earned through his own exertion or efforts. There were many conflicting case laws related to the same.
There are decisions when the property of a dancing girl7 or a broker8, an army contractor9, and a mill manager10 were considered as partible property. That the property they earn will be divided among their heirs equally. But in contrast the property earned by the astrologer11 is considered as impartible. The ground rule applied in this distinction is that property acquired by the own talent and knowledge or exertions is self acquired and impartible.12
In the case of Laleshman Mayaram v. Jamnabai 13 only the elementary education of the person was funded from joint family property and then he himself went for lawyer as a profession. He was a subordinate judge. His property was declared as impartible not because the Judges stand outside the rule, but because whatever he earned was by his own efforts and exertion.
1. Durvasula Gangadharudu v. Durvasula Narasammah and Ors14
The issue in this case is whether the professional earning of the lawyer was his self acquired property or subject to partition?
The judges in this case said that it is totally depended fact of the case whether the earning is subject to partition or not. I this case the it was see that the professional lawyer can not complete his education without any assistance from the joint property. Major portion has to be contributed for his learning therefore his earning is subject to partition.
2. Amar Nath and Gokulchand v. Hukum Chand Nathu Mal15
In this case Gokulcahand was born in the joint family but he went to England to pursue his higher education. He lived there for at least seven years and passed the Indian civil services exam in India. When he returned he was presuming that he was not the member of joint family as he has spent seven years abroad and was living separately. Whether the property he earn was subject to partition or not?
Court said that whole education in abroad of the appellant was funded by father and he does not have the proof that the education was done by his own efforts so his property is subject to partition. Court here rely on the principle of “Gains of this kind, which are impartible, are not gains of science as such, but gains of science made without any detriment to the father’s estate and acquired by the coparceners exertions independently of patrimonial help.”16
The Hindu Gains of Learning Act was passed in 1930
the Hindu gains of learning act was first passed in 1898 in madras legislature and it declared the property of the person earned by his learning to be his separate property but it was failed due to no further steps. Then the sir Bhashyam Iyenger took the steps to pass the act in 1901 but it was failed in madras legislature due to the vetoed by the governor. In 1930 finally the central legislature passed the bill ans was spnsered by Dr. M.R. Jayakar. The Act came into force in 25th July 1930.
Features and explanation of the Gains and Learning Act 1930
SECTION 1: The first section of the act just gives short title which says this act will be called as Hindu Gains of learning act 1930. And it will be applicable to the whole of India except Jammu and Kashmir.
SECTION 2: The second section of the act gives the definition of the word acquirer, learning, and gains of learning. The acquirer means any person of Hindu undivided family who acquires property through his or her learning and education. Gains of learning means any general or extraordinary property he acquired before or after the commencement of the act will be his self acquired property. This act has a retrospective effect. Learning here means any special, general, technical or extraordinary education.
SECTION 3: Section 3 is important in the sense that it cleared out all the ambiguity and loophole of the act. It says that even if the education of the person is partly or wholly funded from the joint property or even if while the person was acquiring the education the family supported or maintained him then also the property will the self acquired property of the person.
SECTION 4: This section preserved certain savings, so that the act should not contradict the others laws and acts. Passing of this act will not in any way affect the
- Working of Transfer of Property Act.
- Any invalidity or validity suffered before the commencement of the act.
- Any partition done before the commencement of the act.
- Any court proceedings pending during the commencement of the Act.17
Judicial position after the Act came into force
1. Chandrakant Manilal Shah And Another v. Commissioner Of Income-Tax18
In this case the Chandrakant manila was karta of the family and his son Naresh Manila was the one of the son of the karta. Here both of them decided to be partners in the firm. And income of officer hold the partnership invalid saying that the son has not contributed any asset or money or property as the consideration. Which is necessary to be a partner. He was just contributing his labour, efforts, skill and knowledge.
The court in this case held that the skill and efforts will be considered and the separate property of the individual. Because according to the gains and learning act property earned by the person through his learning will be self acquired property then the skill, efforts ans labour to earn the property will be also considered as the entity and the self acquired property of the person therefore the partnership between two is valid.
2. Balbir Singh Uppal and Another v. Gurmeet Singh Uppal and Others19
Hakim Singh Uppal was the person residing in Pakistan and was retired. He was also owing some ancestral property there. After partition he started residing in Delhi with his son Arjan Singh (defendant). They were specialist in herbal medicines. Appellant gifted some property to defendant from the joint property to start his business and it was considered to be the joint property business. Issue was whether the yield or profit gaining from joint business will be his self acquired property or the joint property of the family.
Court said that “If the capital is the dominant factor for the earning derived from the business and such capital was given from the joint family funds, the earnings from the business would be the income of the joint family. While in case where dominant source of the earnings derived from the business is learning, such earning would be the income of the acquirer, irrespective of the fact whether the learning was acquired or business was started by the acquirer from the joint family funds.” 20
In this case as Arjan Singh was earning by his knowledge and learning of herbal medicines which was a dominant factor here and the fund given to him form the family business was a support or the supplement to start the business. Therefore it was his self acquired property.
3. Shri Raj Kumar Singh Hukam Chandji v. Commissioner of Income tax, Madhya Pradesh21
In this the family have the common business under the name Sarupchand Hukamchand Private Ltd, the family members decided to share the profits of the company and it was decided that the share of the person from the joint property will be considered as his individual share and separate property. As well as the remuneration will be his individual property even if the family is undivided and business is the joint family business.
Passing of Hindu Gains of learning 1930 has removed the ambiguity and loophole which was there related to self acquired property. According to this act the property earned by the person through his own effort where the learning of the person is dominant it will be the self acquired property of the person.
This legislation was enacted in order to protect the individual right of the person. But this act does not totally gave the property rights to the person blindly. There is a thin distinction to it. It says that especially in the case of coparceners it says that “A private enterprise set up by the coparcener with the help of joint family funds, the profits or gains of such establishment shall be joint family property. If in the same establishment, the coparcener receives salary or emoluments for rendering services, then it will be distinct from the income of the business or establishment and will be his separate property.” 22 this is done to protect the right of individual as well as the family members.
Overall we can say that enactment of this act is a good step to secure the right of the individual. So that individual through his or her learning can get the individual property and identity and without being dependent on any one. Special factor of this act is it is safeguarding the dual right, also of the individual and the family. Because the fund provided by the family and their efforts to raise there child should not go in vain.
Therefore where the dominant factor is the funds from the joint property the share will go to the family property and where the dominant factor will be the services and the learning of the person the property will be his self acquired property.
- Dinshaw Fardunji Mulla, Hindu Law, lexis Nexis, 15th ed, 1982, p. 567-569.
- Herbert Cowel, A Short Treatise on Hindu Law: As Administered in the Courts of British India, bibliolife,1895, p. 465-468.
- Katayana cited in Mitakshara I, Vol IV, p. 8 about the reviews of the ancient scholar.
- Dinshaw Fardunji Mulla, Hindu Law, lexis Nexis, 15th ed, 1982, p. 567-569.
- Prime Minister (Luximon Row Sadasew v. Mullar Row Bajee (1831) 2 Khapp 60 for the dancing girl.
- Ghalakonda Alasani v. Chalakonda Ratnachalam (1864) 2 M.H.C.B. 56 for the broker.
- Lachmin Kaur v Debi Prasad (1898) ILR 20 All 435 for an army contractor.
- Jugmohan Das v Mangaldas (1886) ILR 10 Bom 528 for the mill manager.
- Burga Bat Joahi v. Ganesh Dat Joshi (1910) I.L.K. 34 All. 305 for an astrologer.
- (1882) I.L.R. 6 Bom. 225.
- (1872) 7 Mad. H.C.R. 72.
- (1921) 23 BOM LR 671.
- Dinshaw Fardunji Mulla, Hindu Law, lexis Nexis, 15th ed, 1982, p. 569.
- Dinshaw Fardunji Mulla, Hindu Law, lexis Nexis, 15th ed, 1982, p. 578.
- 11 AIR 1992 SC 66.
- 12 RFA (OS) 73 OF 2010.
- Dinshaw Fardunji Mulla, Hindu Law, lexis Nexis, 15th ed, 1982, p. 578.
- AIR 1971 SC 1454.
- Herbert Cowel, A Short Treatise on Hindu Law: As Administered in the Courts of British India, bibliolife,1895 p. 467.