- Chaitanya Shah*
Introduction
The study of personal laws, and specifically of those relating to the family structure, revolves around our most primary and intimate sociological interactions within the family. The purpose and nature of these interactions change with time. Hence, the laws ought to possess certain flexibility and cannot be regimented into strict compartments. The laws of partition and reunion, which form the primary focus of the article, determine the very existence of the Joint Hindu Family (‘JHF’). While this structure is also referred to as a ‘Hindu Undivided Family’, the former is used throughout the article. It is also noted that the lexical difference between the two terms has its implications. Whereas the term ‘JHF’ refers to the structure when seen as a socio-legal unit, the latter is only used in strictly financial matters such as tax-related issues. The aim of the article is to discuss the effects, on minors, of the exercise of a reunion. The position of minors under the law has always been viewed through a special lens because of the various considerations that need to be taken into account. The legal incapacity of a minor to contract or make decisions on his own volition is one such consideration. To deal with such intricacies, the common law system has ingrained in itself an all-pervading – ‘the best interest of the child doctrine’.
The law relating to partition and reunion determine the very existence of the JHF. The Joint Hindu Family is a creature of law, but a creature like no other. It is a unique structure having its own set of rules regarding the way it is managed and treated under the law. The article argues that firstly, a minor should be capable of taking part in a reunion. Further, the ‘best interest’ doctrine should be applied in a similar fashion as in guardianship and custody cases. The article will first navigate the position of the law of reunion and attempt to provide certain conceptual clarities to lay a foundation for its arguments. Thereafter, the article will discuss the position relating to minors and how this position has evolved. The article will base its arguments on the doctrines of Hindu law to show that a reading of the law, in unison with the judicial reasoning of certain cases, can help us navigate the exact position of the law.
The article then describes what the law ought to look like. In doing so, it discusses the application of the ‘best interest of the child’ doctrine in cases of reunion. The doctrine has developed itself to contain certain universal considerations to guide the wisdom of the courts. However, the considerations do differ to cater to the specificity of different scenarios. The article will consider how the doctrine is applied in different cases under the Guardianship and Wards Act, 1890 and the Hindu Minority and Guardianship Act, 1956. In the conclusion, the article aims at presenting the normative framework of the law with respect to minors and reunion.
I. The Law of Reunion
The Joint Hindu Family has been defined as a creature of law.[1] Through various judgements, the JHF and the coparcenary are attributed a certain sanctity. JHF cannot be created through a mere agreement,[2] but only through a slew of social relations through blood, marriage, etc. The only agreement that can create a coparcenary is the agreement of ‘reunion’.[3] However, an important caveat is that a reunion only ‘recreates’ a coparcenary and therefore presupposes a partition that extinguished a coparcenary. The provision of reunion finds its origin in the classical text of the Brihaspati which allowed the exercise of a reunion only in certain restricted manners. It allowed a person to enter a reunion agreement only “with (his) father, brother or a paternal uncle”.[4]This restrictive nature of the exercise is still alive in judicial consideration as the courts are quite conservative in accepting the claim of a reunion. At the same time, it is important to keep in mind that the traditional patriarchal ideas related to a ‘coparcenary’ have changed with time. The coparcenary has been expanded to allow women today. Hence, in a similar vein, the idea of the reunion is also expanded and will soon be reflected in judicial pronouncements. It is rather implicit in the concept of the reunion that there must be an agreement among the parties to reunite.[5] This agreement can be written or oral. When there is a written agreement, the courts have their work cut out. However, when the reunion is effectuated through an oral agreement, the courts have to look at various circumstances before reaching to a conclusion.
The basic principle that the courts have relied on in this regard, in both oral and written arrangements, is whether there existed an ‘intention’ to reunite.[6] This means an intention to create a ‘junction of estates’.[7] However, it is difficult to prove this intention. It goes beyond the proof that the parties live together under one roof or even engage in a single trade.[8] The facts should clearly prove the intention to create a junction of the estate as akin to the JHF. Even in cases where there existed a written agreement, the courts have ventured into determining the exact intention of the parties. A Privy Council pronouncement, the case of Rajah Setrncherla Ramabhadra v. Rajah Setrucherla Virabhadra Suryanarayana,[9] is a perfect illustration of this. There were 3 brothers, who had agreed to keep their separate shares under the joint management of the eldest brother. The Honourable Council held that the effect of the agreement, in essence, was not to reunite the family back into a JHF, but to render the eldest brother accountable for receipts and expenditures. Hence, the court interpreted the agreement as creating an ordinary agency, not a JHF and, by extension, not the coparcenary. It is important to keep these considerations in mind before analysing the case of the minor coparcener. The sanctity of the JHF does not allow for it to be created or destroyed simply on the whims and fancies of the parties. This sanctity reflects the importance of the family structure, and especially, its sociological importance.
II. The Minor in the Exercise of Reunion
When discussing the case of minors, it is important to keep in mind that a minor is held incompetent to contract by law because he is unable to form a legally valid intention.[10] This assumed incompetency of minors came before the courts in one of the first judicial pronouncements, Balabux v. Rukhma Bai (‘Balabux’),[11] which served as a precedent for many subsequent cases. In this 1913 judgement, the Privy Council held that the requirement of an agreement is inherent to the exercise of a reunion. Due to assumed incompetency, minors cannot take part in the reunion. This proposition has been followed by various high courts since then.[12] The courts also referred to authoritative commentaries on Hindu law, which echo the same position. In Mulla's Hindu Law, the position is elucidated as: “Since a minor is not competent to contract, it follows that an agreement to reunite cannot be made by or on behalf of a minor”.[13] These propositions, if strictly followed, would lead to untenable conclusions. For instance, a father wanting to reunite with his brothers would not be able to have his minor child as a member of the family.
However, there are few alternative propositions that find their place in the jurisprudential setting of the question. For instance, in Mayne, it is said that the guardian can, on behalf of the minor, enter into agreements of partition and reunion.[14] In a case before the Madras High Court,[15] it held that the agreement to reunite can be made on behalf of the minor. However, the recent judgements[16] of the Madras High Court seem to go the other way and follow the ‘Balabux’ judgement.[17] The Supreme Court had an opportunity to resolve this conflict, but decided not to venture into the inquiry because the facts therein did not warrant it.[18]
It is often seen that the law of reunion is somewhat parallel in a certain sense to the law of its antithetical counterpart - partition. This can be supported by various arguments. Firstly, the law is parallel in the sense of the presumption and burden of proof. The presumption held by the court in cases of reunion is against the occurrence of the exercise.[19] Notably, the same is the case in partition, where the presumption lies in the jointness of the family.[20] This presumption also shows that in cases of both partition and reunion, the court exercises a ‘suspicion jurisdiction’.[21] Additionally, the burden of proof in both partition and reunion is on the one who asserts it. The article submits that the law of partition and the law of reunion are parallel in a certain sense. Using this, the position of law relating to reunion and minors can be resolved with the help of existing jurisprudence on partition in Hindu law. This is essential as judicial pronouncements on reunion are limited by the instant factual matrix when laying down a rule. However, analysing the reasoning of courts in cases of partition, and applying the principles therein to certain questions analogically, can help in deducing the position of law. This can help us find an answer to whether reunion agreements are possible on behalf of minors.
To do this, we need to first look at what a minor’s position is in a partition. In the case of a partition, the guardians act on behalf of the minor and the minor retains certain rights even after the partition is affected.[22] These rights include, in addition to rights of all other coparceners, the right to reopen the partition if it is alleged to cause injustice to his interests.[23] Secondly, both partition and reunion deal with affecting the status of the minor in the JHF. Often, adult coparceners exercising a partition have minor children. It is unreasonable to conceive the proposition that a major coparcener is incapable of affecting a reunion because he has a minor child. The minors were constructive parties to the partition and therefore can be constructive parties to the reunion too. Further, the major coparcener, being a parent or a guardian, has the power to give a child in adoption[24] or to separate from him by partition and thus change the minor’s status in the JHF. It is submitted that this power also includes the provision to reunite with the minor members of the family.
The law of partition allows for the setting aside of the partition on the instance of the minor if it can be proved that the partition is detrimental to the interest of the minor.[25] However, a similar provision does not exist under the law of reunion. Even so, a hint of such a proposition can be seen in the case of Venkataramayya v. Tatayya.[26] The court therein was discussing whether a reunion between two sons, one of whom was a minor, was possible after there was a partition effected by the father between him and his sons. After answering the question in the affirmative, it was noted that there was never any reason for separation inter se the sons. Further, the evidence produced to show their conduct strengthened their claim of reunion.[27] The court also pointed out that though at the time of partition one of the brothers was a minor, he accepted the reunion after he attained majority. It would be interesting to see whether the court would have reached the same conclusion had the minor son not accepted the reunion after he attained majority. Thus, the question arises, if a minor cannot actively take part in the reunion but only through representation, can he reject the reunion after he attains majority? Further, if he does so, will he be required to affect yet another partition or will the reunion arrangement be void ab initio?
To answer these questions, it is important to note certain differences that exist between the exercise of reunion and partition. Firstly, partition is a right given to the coparceners,[28] whereas reunion is a rare occurrence of an exceptional nature.[29] Secondly, a partition may be affected at the instance of a single coparcener.[30] However, a reunion cannot take place without the agreement of all parties. Under the law of partition, the reopening of the agreement at the instance of the minor is only allowed if it can be proved that the partition was detrimental to the interest of the minor.[31] The position of the law stands in the favour of the minor and it is submitted that the parallel position ought to be reflected in the law of reunion. This would imply that the minor can reject the reunion, if he can prove that the reunion is not in his best interests. Here, like in partition,[32] the reunion may also be challenged through the ‘next best friend’ of the minor.
Two conclusions can be drawn from the above discussion. These conclusions, however, are results of the analysis and extension of existing propositions of law and have not been given judicial or legislative sanctity. Firstly, minors can be a party to the reunion through their guardian. Secondly, through his ‘next best friend’, a minor can challenge this reunion on the basis that it was not in his best interests. Interestingly, this leads to the question of what the ‘best interests’ principle entails and what are the implications of its application. Relief is sought in the ‘best interests of the child’. The purpose of this doctrine is to guide the wisdom of the courts when dealing with minors. Prevalent use of this doctrine occurs in cases relating to the appointment of a guardian and assignment of the custody of the child. The subsequent discussion will analyse the application of the doctrine in cases of guardianship and custody and argues a similar application in cases of reunion.
* Chaitanya Shah is currently a third-year student at Maharashtra National Law University, Mumbai. His areas of interest are jurisprudence, sociology, and dispute resolution.
[1] CIT v Sandhya Rani Dutta (2001) 3 SCC 420 (Supreme Court of India). [2] ibid. [3] ibid. [4] Ram Narain v Pan Kuer AIR 1935 PC 9 (Privy Council). [5] Babu v Official Assignee AIR 1934 PC 138 (Privy Council). [6] Rusi Mendli v Sundar Mendli ILR (1910) 37 Cal 703 (Calcutta High Court). [7] Indranarayan v. Roop Narayan (1971) 1 SCWR 764 (Supreme Court of India). This junction implies a joint and beneficial ownership of all the parties over the separate property of each party. [8] Gopal Chunder Daghoria v Kenaram Daghoria (1864) 2 Mad 236 (Madras High Court). [9] (1903) I.L.R. 30 Cal 725 (Calcutta High Court). [10] This is a general rule followed in all legal systems. See also Indian Contract Act 1872, s 11. [11] (1913) 130 IA 130. [12] CIT v Rupchand Routhmal (1963) 50 ITR 295 (Calcutta High Court); Minor Balasubramania Reddi v Narayan Reddiar and Ors. AIR 1965 Mad 409 (Madras High Court). [13] Dinshaw F Mulla and Sunderlal T Desai, Principles of Hindu Law (N. M. Tripathi ed, 12th edn, LexisNexis 2013). [14] John D Mayne and N C Aiyar, Mayne's Treatise on Hindu Law and Usage (11th edn, Higginbothams 1953). [15] Babu alias Govinddoss Krishna Doss, minor v Gokuldoss Govardhan Doss and Ors. AIR 1928 Mad 1064 (Madras High Court). [16] Minor Balasubramania Reddi (n 12). [17] Balabux (n 11). [18] V.N.M. Arunachala Nadar v Commr. of Excess Profits Tax (1962) 44 ITR 352. [19] Bhagwan Dayal v Reoti Devi (1962) 3 SCR 440 (Supreme Court of India); Mayne (n 14). [20] Srinivas Kango v Narayan Kango AIR 1954 SC 379 (Supreme Court of India). [21] Kesharbhai v Tarabhai, (2014) 4 SCC 707 (Supreme Court of India). A ‘suspicion jurisdiction’ is where the court begins its examination of a question with a presumption that opposes the argument of the party. This determines who bears the burden of proof in a specific case. [22] Ratnam Chettiar v S M Kuppuswami Chettiar AIR 1976 SC 1 (Supreme Court of India). [23] ibid. [24] Hindu Adoption and Maintenance Act 1956, s 9. [25] ibid. [26] AIR 1943 Mad 538 (Madras High Court). [27] ibid. [28] Girja Bai v Sadashiv Dhundiraj AIR 1916 PC 104 (Privy Council). [29] Anil Mitra v Gananedra Mitra (1997) 9 SCC 725 (Supreme Court of India). [30] Kalyani v Narayan 1980 Supp SCC 298 (Supreme Court of India). [31] Apoorva Shantilal Shah v CIT (1983) 2 SCC 155 (Supreme Court of India). [32] Kakumanu Pedasubhaya v Kakumanu Akkamma AIR 1958 SC 1042 (Supreme Court of India).