SOAS Research Online

Abstract

The institution is based on the concept that a nucleus of ancestral property and accretions to it do not exclusively belong to one person, but form the basis for the spiritual and economical welfare of family members normally within a circle of three generations. In traditional belief even past and future generations have an "interest" in the property of those who enjoy the property for the present. This concept was based on patriliny. Patriarchy existed but did not develop into the strict Roman patria potestas. It rather served to emphasize the rights of the father in the face of premature assumption of powers by the son. The core of the institution is the relationship between father and son. The son is the father reborn and inherits not only rights to enjoy property, but also responsibilities towards all family members. The admixture of customary law in the Dharmasastras brought modifications and accretion of rules. Thus the value of ancestral land furthered the rights of the son. Rights of females in property competed with the view that women should be only maintained which includes marriage expenses. The customary elementary family with community of ownership between husband and wife occurs in sastric texts but recedes in the face of the pivotal relationship of father and son which constitutes a kind of "trust". After the death of the common ancestor the law always anticipated partition and formation of new smaller joint families unless brothers remained joint out of convenience or necessity. In Anglo-Hindu law the traditional institution may have suffered from over-specialisation of rules, deficient selection or application of sastric material, and conflicting decisions. But judge-made law has essentially supported greater individuality without destroying basic jointness and has in fact supported the preservation of the joint family. Even legislation has not abrogated the basic jointness between agnates and especially between father and son. This process represents an example of the adaptation of a traditional legal institution to modern demands.