A CRITICAL APPRAISAL OF THE HINDU GAINS OF LEARNING ACT

I Introduction

TO MEET the ends of justice it is necessary that all factors of production like capital and labour are given due recognition and a fair recompense. Family law is no exception to this goal although it is difficult to achieve a viable formula of distributive justice in a sphere where sentiments, sense of moral duty and legal rights interact.

In the Hindu joint family system this difficulty is seriously realised and attempts have been made, sometimes unsuccessfully, by Sastric wri­tings, judicial decisions and legislation to solve the problem. The law relating to Hindu gains of learning has failed to satisfy the claims of all the economic factors.

The gains of learning or vidyadhana is that earning which a Hindu coparcener makes by employing the knowledge and qualification acquired through education. The Hindu Gains of Learning Act 1930 (H.G.L.A.) makes the gains of learning the exclusive property of the acquirer, thereby creating an exception to the basic principle that property acquired at the expense of the joint family accrues to it.

This paper seeks to inquire whether the H.G.L.A. provides for an equitable distribution of family property among the persons equally situated and whether non-recognition of labour of an unlearned copar­cener is just, fair and constitutional

Ii Historical conspectus

The march of the Hindu society reflects a movement from community and household ownership to individual ownership.1 Patriarchal control yielded place to the joint family system where rights of the coparcener in family property by birth were recognised.2 The idea of self-acquired property was not in vogue.3 Labour for and comforts from the family balanced each other in the predominantly agricultural society.4 The

1. See Roscoe Pound, An Introduction to the Philosophy of Law 126-7 (1955). 2. See Henry S. Maine, Ancient Law 252 (10th ed); John D. Mayne, A Treatise on

HinduLawandUsagel93'4(3rded.l8S3);KomU\a.Tha.pariA History ofIndia% vol I, p. 35. A parallel to such evolution can be found in Roman legal system also. See Lord Mackenzie in John Kirkpatrick (ed.), Studies in Roman Law 140 (6th ed. 1886). See also Gyorgy Diosdi, Ownership in Ancient andPreclassicalRoman Law 22 (1970).

3. John D.Mayne, id. at 207. 4. Ibid. Also see P.V. Kane, History of Dharmashastra, vol. HI, p 578(2nd ed. 1968).

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agricultural family could claim the assistance and labour of its members in cultivation. But emergence of modern industry and commerce altered the conditions. The family could not claim the fruits of special skill and labour of its members who did not use family property for their avoca­tion.1 From this arose the idea of self-acquisition and the doctrine of detriment. This change in the property relations was the answer to the dynamics of social needs, occupational mobility and economic type of the societv.*

The doctrine of detriment requires that whatever is acquired at the detriment of the family property should be regarded as its accretion The rational foundation for this doctrine can be found m the social security,7

economic base and psychological set-up8 provided by the joint family property to its members which was to be protected against frittering. The rule prevailed even in the area of gains of learning.

Manu stated that what one (member of a joint family, brother, etc.) acquires by his own labour without using (or without detriment to) the paternal estate shall not be shared with others, unless he so desires since that acquisition was the result of such labour.* Manu also said; "Pro­perty (acquired) by learning belongs solely to him to whom (it was given), likewise the gift of a friend, a present received on marriage or with the honey-mixture."10 Reading these statements together, the effect would be the same as that prescribed by Narada, namely, "A learned man is not bound to give a share of his own (acquired) wealth against his will to an un­learned co-heir, unless it has been gained by him using the paternal estate.**11

However, reading the second verse of Manu in isolation, as done by advo­cates of the H.G.L.A./2 damages the spirit of Manusmriti and is opposed to the principle of interpretation. Katyayana's statement of the law also leads to the same conclusion.13 Even so is Yajnavalkya's who ex­plained what may not be divided as follows:

5. John D Mayne, ibid. 6. Sec R.K* Misra, "Some Questions Regarding the Joint Hindu Family" in G S.

Sharma (ed.), Property Relations in Independent India: Constitutional and Legal Implica­tions 240, 244 (I L.I. 1967). However, the law of self-acquisition was of a very slow growth. See I.S. Pawate, Daya Vibhaga; or the individuatisation of Communal Property and Communahsation of Individual Property in Mitakshara Law 148 (2nd ed. 1975).

7. M.Chansarkar, Social Insurance for Indian Working Class 19, cited in Vivek Bhattacharya, Social Security Measures in India 13.

8. Gunther-Dictz Sontheimer, The Joint Hindu Family xxi (1977). Sec also J.D.M. Derrett, "The Relation between Social and Economic Development of Society and the Development of Law; Hindu Law in India'*, A.I.R, 1970 Jour, 1.

9. Manu IX, 208. 30. Id. at 206. 11. Narada XIII, 11 (emphasis added). 12. See the leading article "The Hindu Gains of Learning Bill", 10 M.LJ. 1 (1900)

See also E.Vinayak Rao, "Mr. Jayakars' Gains of Learning Bill'* A.I.R. 1929 Jour. 73-74*79-80. For statement of objects and reasons of the Bill, see Gazette of India 1929 pt. V, p. 228; AJ.R. Manual vol. 20, pp. 595-603 (4th ed. 1979),

R Katyayana 867-75; P.V.Kane, supra note 4 at ^83.

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[W]hatever is acquired by a person himself, without detriment to or expenditure of paternal wealth, gifts from friends, gifts at marriage, these are not liable to be divided among a man's coparceners; simi­larly he who recovers ancestral property lost to the family... would not have to share it at a partition with his coparceners; nor his gains of learning.!4

Mitakshara, interpreting this clause states that

the words whatever is acquired without detriment to the paternal father's wealth, are to be understood as qualifying each of the...four kinds of property.15

This practice prevailed amongst the ancient guilds.1* The morals of the agrarian economy and labour of the time also supported this legal position.17 However, some jurists attempted at formulae to balance the interests of the learned coparcener and the family.18

In the application of the doctrine of detriment to the sphere of gains of learning certain complicated questions arose: What was the type of detri­ment to patrimony that would entitle the family to the acquisition made by the coparcener-acquirer? Was the family assistance entitling sharing con­fined to direct assistance only or would it cover indirect assistance also?

As the doctrine of detriment emerged to compensate the family for its deprivations19 and as deprival could be found both in direct and in­direct detriment to the family property, the distinction between direct and indirect use of the family property was never recognised in deter­mining whether the property was self-acquired or belonging to the joint family.20

14. Yajnavalkya II, 118-19. See Kane, id at 579. 15. Mitakshara, ch I, s.IV. See Kane, ibid. 16. The guilds had social control over the acts of family members of the persons who

constituted the guilds. See RomiMa, Thapar, supra note 2 at 110. From this can be inferred the duty of guild members to economically support their joint families from which they derived the climate for their growth.

17. See Sukraniti; P.V. Kane, supra note 4 at 583. Uthamam swarjitam vitham madhyamam pitararjitam I

Adhamam bhratru vithanthu stree vithama-dhamaadhaman Subhashitam 11. 18. According to Vasishtha, "[i] f any of the brothers has gained ^ something by his

own efforts, he receives a double share'*. Vasishtha XVII, 26. Se also Vysya 3 Dig. 71; Dayabhaga, citing Katyayana, distributes self-acquisition of son as follows: father gets half, the son acquires two shares and other sons one share each, if family property is used in the acquisition; otherwise, father and acquirer share equally. Dayabhaga II, 66-72, cited by P.V. Kane, id. at 578. The approach of these jurists to reconcile conflicting in­terests is innovative.

19. See supra notes 7 and 8. 20. According to Thomas Strange, "the essence of exclusive title (i.e., self ^equiisitios)

consists in its having been made by the sole agency of the individual, without employing

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Concerning the extent of family assistance that makes the acquisition partible property, there was no unanimous opinion among the scholars. Katyayana and Srikara followed a rigid policy whereas the approach of Dayabhaga was liberal. According to Katyayana, k4that wealth is said to be the gains of vidya which is acquired by means of learning received from another while subsisting on food furnished by others/'21 He regard­ed acquisitions made by exhibition of knowledge, solution of puzzles and teaching as gains of learning.22 Srikara also held the view that if a coparcener was maintained by the family during his education, the lear­ning and the subsequent earning were at the expense of patrimony.23 Daya­bhaga opposing Srikara's view argued that as a coparcener "since his birth depends upon his family for food and maintenance...hardly any man can say that no paternal wealth was expended on him and so earnings of what­ever kind would have to be deemed to be partible"*4 and concluded that, where it is attempted to reduce a separate acquisition into common pro­perty, it must be shown that the joint stock was used for the express pur­poses of gain. Dayabhaga likened food and maintenance from the family to sucking of mother's breast.25 J.D. Mayne regarded this approach as rational and observed that only the extraordinary family outlay in the education and training of a coparcener was to be reimbursed to the family as a legitimate expectation.26 The distinction between ordinary and substantial assistance by the family was gradually recognised by the judi­ciary also,

III Judicial refinement

It appears that the judicial trend was towards narrrowing down the category of partible gains.*7 Judicial doubts arose as to the following points: What would constitute detriment to the partrimony? Whether substantial assistance from the family is necessary for this? Whether lear­ning suggested specialised education or mere general and elementary education?

for the purpose what belongs in common to the family". See Thomas Strange, Hindu Law 213 cited in Metharam v. Rewackand, I.L.R. 45 Cal. 666, 671 (1918).

21. Katyayana 867-73; Sec P.V. Kane, supra note 4 at 583. 22. Ibid. 23. P.V. Kane, id. at 582. See also Narada; "When one brother maintains the

family of another brother who is engaged in studying the sastras, he shall receive a share of the wealth gained by that study, though he be ignorant himself.*' Cited by Kane, id. at 580.

24. Dayabhaga VI, 1, 42-49, P.V. Kane, id at 582 25. Id. at 44-50. 26. J.D. Mayne, supra note 2 at 247. 27. However, general approach of the judiciary was one of non-intervention in the

field of personal laws. See M\P, Jain, Outlines of Indian Legal History 412-74 (4th ed. 1981).

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In the beginning the court construed detriment of the patrimony in a wide manner so as to include even slight assistance like maintenance and elementary education. In Laxman v. Malhar Rao2s a large estate of one Bhao, worth over Rs. 30 lakhs made by him was considered by the Privy Council as joint family property although he had received no more than elementary education at the expense of the joint family. It appears that the Privy Council failed to note that ordinary assistance such as maintenance and elementary education were like sucking of mother's breast and did not amount to substantial deprival of family property. The Laxman case is the result of wrong causation. The error in the reasoning of this Judicial Committee was perpetuated by lower courts in several cases.

In Chalakonda Alasani v. Chalakonda Ratnachalam?* which concern­ed a family where girls were trained to be dancing girls as a part of the then existing social custom, the High Court of Madras, upholding trie appeal, held the property of a dancing girl, who had learnt singing and dancing at the family expense, as partible. Taking the same strict view, it was held that gains of a pleader were partible because either his learning was not science30 or they were deemed to be acquired at the family ex­pense, even though it was responsible for no more than a general educa­tion.31 It appears that the judicial hesitation towards individualisation of gains of learning expressed in these cases was influenced by the familism based strong abhorrence of self-acquisition canvassed by certain jurist theologians32 and a lack of judicial enthusiasm.

But clear changes in the judicial approach can be found in the sub­sequent period. For this, certain factors were responsible. Firstly, the judgment in Chalakonda that the doctrine of detriment operated only in cases of substantial assistance from the family nucleus.33 Secondly, the obiter dicta of Justice Mitter in a Bengal case34 that the Hindu law no­where sanctions the contention that acquisitions made by a learned copar­cener by the aid of education received at the family expense are partible. His view was accepted by the Privy Council in a case35 even though this issue was not directly in question. But, this view clearly went against Sastric writings as discussed above. These two factors influenced the courts to narrow down the category of partibles to those cases where family property was substantively used in the process of learning.86 To

28. (1831)2Knapp60. 29. (1864^ 2 Mad H.C. 56. 30. Durvasula Gangadharudu v. Durvasula Narasammah, (1872) Mad. H.C. 47. 31. Bai Manchha v. Narotamdas, (1869) 6 Bom. H.C. 1. 32. Like Sahara, Medhathithi, Haradatta. See P.V. Kane, supra note 4 at 578. 33 This reasoning was rejected in appeal. See supra note 29. 34'. Dhanookdareev. Gunuput, (1868) \ Beng L.R. 201 note: 10 S.W.R. 122. 35. Pauliemv. Pauliem, I.L.R. 1 Mad. 252 (1877). 36. See E. Vinayak Rao, supra note 12 at 73-74.

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constitute joint family property the acquisition should have been from specialised learning which furnished the source of immediate income, not mere elementary education which was a stepping-stone of all sciences.37

In 1891 V. Bhashyam Iyengar introduced the Hindu Gains of Learning Bill in the Madras legislature with the intention of securing the acquisitions to the acquirer only,38 which, however, did not become law.39

By the time Metharam v. Rewachand^ was decided in 1917 it became clear that personal earnings and acquisitions from learning may remain partible throughout the unseparated member's life, if he was originally equipped for the calling or career, by a special training at s bstantiai expense of the patrimony, but not otherwise.

The Privy Council's decision in Amar Nath GokalChandv. HukumChand Nathu Malil in 1921 is a landmark in this area which raised strong waves of elite public criticism. In this case, the earnings of a member of the Indian Civil Service, who had been sent to England for special education and was maintained for seven years at the family expense were held to be joint family property. The Judicial Committee regarded the substantial outlay of family funds in educating a coparcener as a continuing invest­ment for the family benefit and thus income earned by such coparcener was an accretion to the family property. It made no distinction between direct and indirect assistance by the family, as the deprival of family pro­perty did exist in both the situations.42

In Gokal Chand the Privy Council had the best opportunity of satis­fying the claims of family capital and labour by equitable apportionment of the gain. By frittering it away it stretched the legal pendulum to one extreme (i.e., capital). But legislative intervention snatched it to the other extreme (i.e., labour) with certain discriminations.

IV Legislative intervention The elite dissatisfaction43 with Gokal Chand made M.R. Jayakar to

37. Lakshman Mayaram v. Jamnabi, IX R. 6 Bom, 225(1882); Krishnaji v. Moro, I.L.R. 14 Bom. 32 (1891); Lachmin v. Debt Prasad, I.L.R. 20 All 435 (1898); Durga Dat Joshi v. Ganesh Dat Joshi, LL R. 32 All. 305(1910), In these cases, the acquisitions of subordinate judge, karkun, army contractor and astrologer respectively were held to be self-acquisition by applying this reasoning.

38. The Bill had this object: "The propriety of conceding to the acquirer the sole and independent right to his gains of learning is not merely a matter of expediency, but a question of natural justice, which, in modern times, can hardly be gainsaid by any fair-minded person.*' In support of the Bill, the Manusmriti sloka (IX, 206) was cited in isolation without citing IX, 208 See statement of objects and reasons, supra note 12.

39. Though the Bill was passed by the provincial legislature of Madras, it was vetoed by the governor. See H.H Shephard, "Hindu Law and Anglo-Indian Legislation", 18 L.Q. Rev. 172, 175-76(1902).

40. Supra note 20. 41. LL.R. 2 Lah. 40(1921), 42. Id. at 50. 43. See(y«pranote4l. For the proposition that the H.G.L. Bill was introduced to

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pilot the H.G.L. Bill in the central legislature in 1929. Its important ob­jects incorporated, (/) the principle that a man who worked for a thing shall be allowed to get it, keep it and consume it without dividing it with idlers; and (ii) recognised the fact that family expense in education is not investment.44

Section 3 of the H.G.L.A. reads*

Notwithstanding any custom, rule or interpretation of the Hindu Law, no gains of learning shall be held not to be the exclusive and separate property of the acquirer merely by reason of— (a) his learning having been, in whole or in part, imparted to him by

any member, living or deceased, of his family, or with the aid of the joint funds of his family or with the aid of the funds of any member thereof, or

(b) himself or his family having, while he was acquiring his learning, been maintained or supported, wholly on in part, by the joint funds of his family or by the funds of any member thereof.

The Act clearly made the doctrine of detriment non-applicable to the Held of gains of learning. The use of the expression "merely by reason of" shows that if the family assistance to the acquirer was something in addition to those mentioned in clauses (a) and (b) of section 3, the general principle of detriment would be applicable; for example, if a family pro­vided funds to the acquirer to open a clinic, laboratory, nursing home, workshop or other lucrative business. However, this "merely by reason of" logic cannot be stretched too far to cover maintenance from the joint family during acquisition.

H.S. Gour has pointed out that the Act does not affect the law where such aid is given from funds borrowed on the security of the family property or any of its members, as when a joint family pledges its small estate to raise funds to give one of its members a special training, enabling him to enter a lucrative service or calling or start a lucrative business.45 It is doubtful whether section 3 would permit such a view. The funds raised on the security of family property do not cease to "be the joint funds of his family" simply for the reason that it imposes a risky burden on the family. Further, the argument that the acquisition is not made substantially by means of learning may not be tenable, because whatever be the role of family capital in educating the learned coparcener or whatever be the

undo the consequences of Gokal Chand, see statement of objects and reasons to the Bill, supra note 12, See also observation ofK.S. HegdeJ. in Raj Kumar Singh v. Income Tax Commissioner, A.I.R. 1971 S.C. 1454 for the same proposition. See also Rama-krishna v. Vishnumoorthi, A.LR. 1957 Mad, 86.

44. See supra note 12. 45. Hari Sigh Oour, The Hindu Code, vol. II, p. 161 (5th ed. 1975).

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difficulties with which such expenses were incurred, the family capital is only indirectly responsible if it is used only in educating him and not for anything else. In that case the learned coparcener earns "substantially by means of learning" and section 3 confers advantages on him.

What Gour has pointed out, it is submitted, would not be logical or even in accordance with the spirit of the Act. Such an interpretation is subject to the danger of misuse and if allowed would defeat the purpose of the Act.46 In his effort to overcome the baneful consequences of the H.G.L.A., which has not provided for reimbursement of family assistance during special learning, Gour has apparently strained the logic.

The judiciary has had no opportunity to narrow down or broaden the operation of the Act or to examine its constitutionality as no such com­plex case came up before the court. In Hanso Patak v. Harmandil Patak*1 and Ramakrishna v. Vishnumoorthi** in holding that the income earned by a purohit (priest) who received Vedic education with the aid of joint family funds was self-acquired, the judiciary applied section 3 mechanically and with no difficulty. However, when there was no element of learning but only family assistance in the profession of a coparcener, the courts have unhesitatingly declared such acquisition as joint family property.49

V Critical analysts

The operation of the H.G.L.A. in the Hindu joint family system of the Mitakshara school can be analysed through the following practical illustration. A Hindu joint family consists of H, the father, and four sons A,B,C, and D. A and B, the elder coparceners with their father cling to agriculture or business in the paternal estate after their elementary or secondary education. Through their hard work, experience and skill earned in course of time they contribute to the maintenance and substan­tial growth of paternal property. C and D by using the huge family assis­tance (say, Rs. 50,000) get specialised education of a formal type and begin to earn through their special skill, thus got, outside the family. After a lapse of considerable time (say, 25 years) it is intended to effect a general partition of the family property. It is interesting to discuss who

46. If loan on family property for raising the finance to give specialised education is a factor which makes the Act non-applicable, the operation of the Act can be easily avoided by creating promissory notes.

47. A.I.R. 1934 All. 851. 48. Supra note 43. 49. C.I.T. v. Kalu Babu Lai Chand, A.I.R. 1959 S.C. 1289; P.N. Krishna Iyer v.

C.I.T., 73 I.T.R. 539 (1969) (S.C). In the last two decisions, personal element did exist and the reward as sitting fee was for personal skill and was paid separately. Still, the Supreme Court considered that it as acquisition to joint family property which proposi­tion, it is submitted, is wrong. See also Dhanwatey v, C.I.T., A.I.R. 1968 S.C. 683.

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really gains and who really loses in such an event. In the above illustration, the growth of the family propeuy will be

considered as an accretion to the paternal estate because of the applica­tion of the doctrine of detriment. The H.G.L.A. does not secure the fruits of labour of A and B, either because theirs is not learning or because it is applied on the family property. Thus, the family property will have to be divided equally among all the coparceners. But the pro­perties acquired by C and D become their self-acquisition by the operation of section 3. As the past accounts and expenses of the family cannot be considered at the time of partition unless agreed to otherwise, the huge financial assistance made by it during the specialised education of C and D, will not be taken into consideration. Hence, for C and D, expenses of their education are diffused by distribution, their personal earnings by the use of specialised skill are secured, alongwith respective shares, not only in the original nucleus of paternal estate but also in all the accre­tions to it due to the efforts of the unlearned coparceners. For A and B there is the burden of sharing the expenses of education of learned copar­ceners and also the pain of sharing the fruits of their own labour gained through the medium of family property. Where lies the fault for this unreasonable state of law?

The H.G.L.A. provides for a very wide connotation of the term "learning". It means "education, whether elementary, technical, scientific, special or general, and training of every kind which is usually intended to enable a person to pursue any trade, industry profession or avocation in life."50

The definition cannot be confined to formal learning as is done in practice. Modern business or scientific farming require personal skill, managerial ability, hard labour and planning. It is usually the school of experience which teaches and trains the unlearned coparceners in their family avocation. From the view of personal element and labour there is no real distinction between formal and informal learning. Thus, to exclude informal learning from the advantages of the H.G.L.A. would violate the right to equality as its object is to protect the individual labour of the coparceners.51 For the simple reason that their effort is applied on family property or for the reason that their role in the improvement of family property cannot be precisely determined, the personal application of their learning acquired through experience cannot be ignored.

It may be argued that even if informal learning is included within the scope of the term "learning", to the cases of A and B, the H.G.L.A. is not applicable because of the operation of the phrase "merely by reason of". As the acquisition made by A and B is through the medium of or on the

50, S. 2 (c). 51. This is for the reason that the criterion of classification, / e , formal/informal has

no rational nexus with the object of the legislation.

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family property, the acquisition cannot be said to be "merely by reason of...learning". Suppose C and D apply their specialised skill on the paternal estate, then also the acquisition does not become self-acquired property as the former is not "merely by reason of. . . learning". It is learning plus use of paternal estate. Going a step further, it may be con­tended that there is legal equality amongst learned coparceners and unlearned ones, as the law applies to them equally in similar situations.

But this 'legal equality' situation is only a facade or a trap of argu­ment covering the real inequality and injustice. In almost all the cases covered by sociological survey, persons getting specialised education work outside the family.62 Even those few applying their skill on the family property, usually arrange for remuneration for their personal skill. On the other hand, the unlearned coparceners apply their skill and efforts on the family property with usually no arrangement for remunerating their work. Thus, the H.G.L.A. is operating unequally against the unlearned coparceners for the sole reason that their learning is applied on the family property.**

A legislation enshrining the avowed policy and the object that "the acquirers should not be forced to share the fruits of their labour with idlers" should not permit the interests of capital to totally foreclose the claims of labour for the result would be obviously unequal sharing of burdens but equal sharing of advantages arising from them. This position cannot be in consonance with article 14 of the Constitution which does not permit equal treatment of unequals.

Injustice would also arise when claims of family capital are totally ignored. In Venkataramayya v. Ventakataramappa** a member of a Hindu joint family, started trade with an initial financial assistance from the joint family funds without any further assistance. The Madras High Court extended the principles of the H.G.L.A. to the case and regarded the acquisitions made through trade by the member as his self-acquisition. The court noted that any continued assistance by the family would have made it the joint family property. In this case, the interests of other members of the joint family in the family investment are totally ignored. Derrett55 rightly criticises the decision for its rejection of the doctrine of detriment altogether.

What is needed is equitable apportionment of the returns between family capital and labour. Manu himself provided for a highly equitable principle in this regard. He stated:

52. The author has conducted personal interviews and opinion survey in the middle class Hindu families of Puttur and Bantwal taluks of Dakshina Kannada District of the State of Karnataka. The data gathered is extensively relied on in the critical analysis.

53. Ibid. 54. A.I.R. 1953 Mad. 723. 55. J.D.M. Derrett, 'The Supreme Court and Acquisition of Joint Family Property",

Essays in Classical and Modern Hindu Law, vol. Ill, p. 349 (1977).

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Avidyanam tu sarvesam thats* ceddhanam bhavat samastatra vibhaga syadapitryah iti dharand\%* (The income acquired through agriculture and business by unlearned brothers is liable to be shared equally among them as it is not an ancestral property).

Kulluka, interpreting this verse, points out that the income so earned is after pitrya varjite or after meeting the claims of the family property.57

The Maniprabha Commentary also suggests the same.58 It would appear that when unlearned coparceners conduct agriculture or business with family property and earn income or develop the family property, what remains after deducting the claims of family capital (with interest), can be taken by them as self-acquisition. Any other meaning would, it is submitted, make the above verse redundant in the light of the verses discussed earlier.59

Vasishta has laid down the principle that earners using family property and contributing their own skill and enterprise are entitled to double-share.60 Derrett,61 citing Jagannatha, interprets "double share" to mean that in which the earner takes a proportionate share, quantified by the relation between his own contribution or personal skill and that of the family. In his view section 88 of the Trusts Act 1882 should be applied in such cases.62 He observes:

There should be an evaluation of the family's rights as against the individual's rights. In so far as nothing is claimed for personal skill, the proportion of the family's capital to the whole should be the guiding principle: when skill is alleged and proved that should be a ground for an allowance to the acquirer.63

56. Manusmriti IX, 205. 57. Kulluka, Manusmriti—Manvartamuktavali 402 (10th ed. 1946). 58. Manusmriti with iManiprabhdk Hindu Commentary 532 (1965). 59. See supra notes 9 and 10. 60. Vasishtha XVII, 51. P.V. Kane regards this as reference to any early practice

which later fell into desuetude. Also see Dharamdas Kundu v. Amulyandhan Kundu, I.L.R. 33 Cal. 1119 (1906).

61. J.D.M. Derrett, "Acquisition of Joint Family Property through a coparcener: Let Sastric and Equity Principles Join Hands", in supra note 55 at 367.

62. Section 88 provides: "Where a trustee, executor, partner, agent, director, of a company, legal adviser or other person bound in a fiduciary character to protect the interests of another person, by availing himself of his character, gains for himself any pecuniary advantage, or where any person so bound enters into any dealings under circumstances in which his own interests are, or may be, adverse to those of such other person and thereby gains for himself a pecuniary advan­tage, he must hold for the benefit of such other person the advantage so gained." See also J.D.M. Derrett, id. at 369.

63. J.D.M, Derrett, id. at 371.

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The Hindu law provided a formula for this in the doctrine of preferen­tial share of the brother (jyesta bhagd) whose contribution to the family was extraordinary.6* However, this practice suffered desuetude.65

When a joint family invests in shares of a company and enables its member to be a director of the company, as per the present ruling of the Supreme Court, the receipt in character of return to family capital would go to the family and remuneration to the services of the coparcener-direc­tor would go to him." When the return of capital and labour is clubbed together there is found the need for apportionment.*7

In cases of co-tenancy, provisions are made for adequate compensa­tion for unembarrassing and bona fide improvements made by the co-tenants, or for apportionment of the improved share in case of division.68

Similar principles can be found applicable in case of improvements made by the mortgagees-in-possession69 and a trustee.70 So also an argument based on section 70 of the Contract Act 1872 would decline a practice which would favour unjust enrichment. Even an extension of J.D. Mayne's analysis for a coparcener's right based on his personal investment made on the family property would lead to the same result.71 In such cases the labour and enterprise which have enhanced the value of the family pro­perty should be considered as a debt of the family demanding contribu­tion at partition. A principle emerging from the decisional law supports the idea of recognising the efforts of unlearned coparceners. Thus, if a karta (manager) gives to a coparcener the right to use some joint family property for his maintenance, the surplus over the maintenance, saved or invested by the coparcener, is regarded as the self-acquisition of the copar­cener.71

Another aspect of the operation of the H.G.L.A. is equal sharing of huge expenses incurred by the family in their specialised education of the learned coparceners. Today, acquisition of special education involves extraordinary outlay of family funds (even up to a lakh) a position which

64. Lakshmidhara on Manu IX, 112-14. Kritya Kalpataru 655-65; Mcdhathithi is also of the same opinion. See Gunther-Dietz Sontheimer, supra note 8 at 129 and 59. See also Brihaspati 26, Lakshmidhara, Kritya Kalpataru 656.

65. See Gunther Dietz Sonthiemer, id. at 129. 66. Raj Kumar Singh, supra note 43. This case applied the principle adopted in C.I.T.

v. Kalu Babu Lai Chand, and Krishna Iyer v. C.I.T., supra note 49. 67. Raj Kumar Singh, id. at 1461. 68. Sec Freeman on Co-tenancy 415-16 (2nd ed.). See also R.C. Mittra, Law of

Joint Property and Partition in British India (Tagore Law Lectures). 69. See s. 63 A(2) of the Transfer of Property Act, 1882. 70. Ss. 32, 34, 35, 36 and 88 of the Trusts Act. 71. John D. Mayne, supra note 2 at 517. See also D.F. Mulla, Principles of Hindu

law 397 (14th ed, 1978). 72. Narasammay. Venkata Narasi, A.I.R. 1954 Mad. 282; Ramayya v. Kolanda,

A.I.R. 1939 Mad. 911; Latchandhora v. Chinnavadu, A.I.R, 1963 A.P. 31,

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did not exist in 1930. It is no longer an ordinary and routine expense of the family but is an investment itself. Unless a fair recompense to such investment is provided, it would cause unreasonable consequences. Such investments necessarily withdraw the family capital from the usual process of growth. But the H.G.L.A. restricts its advantages exclusively to the learned coparcener permanently, thereby unjustly depriving other copar­ceners of their legitimate expectations. The family has a legitimate right to receive a fair return on the family capital which would be more compel­ling as a moral principle, especially in circumstances pointed out by Gour.

In fact, the elite dissatisfaction against Gokal Chand type of cases arose when the learned coparcener was required to return not the cost of his special education with fair interest but the incomparably higher fortune by the application of his learning. If the obligation was to return the cost of education only (with interest), such an equitable rule would not have raised any protest.

A solution for equitable recompense of individual and family contri­butions finds support from some juristic and judicial views and also the actual practices. Derrett writes:

[W]hen it is thought by the manager that the family should not be at a loss even if the coparcener is to gain (rather strange notion, but not an inconceivable one), it is possible to envisage the odd conclusion that although the profit may be the coparcener's own, the amount by which the family lost in enabling him to make this gain should be debited to him at the partition.73

Such an arrangement is judicially accepted practice. In Shridhar v. Martand,74 a family agreement that expenditure on secondary and higher education of a member would at the time of partition be saddled on the share of the member concerned, was held as valid by the Nagpur High Court. Though past accounts are not to be taken during partition,76 it is per­missible for coparceners by earlier agreement to consider certain expenses as individual and debitable during partition. The expenses incurred for higher education (like medical) were thus properly debited in this case. The principle laid down in the case was based on several precedents76 and also on the view of Katyayana.77 Further, in actual practice, such formal or informal arrangements can be found. It cannot be understood why this principle should not be extended even to circumstances wherein no such family agreement exists.

73. J.D.M. Derrett, supra note 55 at 359. 74. A.I.R. 1954 Nag. 361. 75. See Narayana Swami v. Ramakrishna, A.I.R. 1965 S.C. 289. 76. Rajah Sethrucherla Ramabhadra v. Rajah Setrucheria Virabhadra, 26 I.A. (P.C.)

167 (1899); M. Ranganmani Dasi v. Kasinath Dutt, 3 Beng L.R. O. J. 1 (1869) (F.B.). 77. Colebrooke, vol. II, p. 481, placitura 373.

1985] THE HINDU GAINS OF LEARNING ACT 591

The H.G.L.A. explains the phrase "gains of learning" to mean "all acquisitions of property made substantially by means of learning, whether such acquisitions be made before or after the commencement of this Act and whether such acquisitions be the ordinary or the extraordinary result of such learning".77fl Two possible interpretations can be given to this definition. The first is that the words "all acquisitions of property" include every acquisition of the property without having any regard to the family outlay and thus is gross acquisition. In such a case, the learned copar­ceners are not under a duty to make a fair recompense to the family investment on their education. Hence individualised expenses are commonly shared. Amounting to unequal treatment of equals, the position cannot be justified under article 14.

In the second interpretation "all acquisitions of property made sub­stantially by means of learning" would suggest that acquisitions should be mainly from the learning and be something after providing for fair recompense to the family investment on the specialised education of the learned coparceners. In other words, "gains of learning" should be interpreted as net and not gross gains. By this interpretation there will neither be unjust enrichment of the learned coparceners nor unjust deprivations of the unlearned coparceners. Only the second interpretation would seem to be constitutional and correct.

The other possible shades of opinion on the operation of the H.G.L.A. may now be examined.78 Firstly, it may be argued that the labour of unlearned coparceners is balanced with benefit of maintenance received by them from the family. There is a grain of truth in this proposition. But, when the contribution of the unlearned coparceners to the family property is more than that which is just sufficient for their maintenance, as is usually the case, this proposition would not operate, but becomes as an oversimplistic argument of escapism.

Secondly, it may be suggested that the family property is equally available for the specialised education of any coparcener and if that op­portunity has not been availed of, it is his inability for which no tear need be shed. It is submitted that the argument is a distortion of fact, as free­dom of choice is not as equal or as wide for all coparceners.

Thirdly, it may be argued that the rights of coparceners to partition would solve the problem. It it submitted that the partition is not a desira­ble solution always. Exercise of right to partition depends on many factors of familial consideration.

It may be noted that in the modern societal context, the institution of the Hindu joint family, unlike as in the past, is a rare phenomenon and the intensity of the problem may not be severely felt. But its rarity from whatever reason arising would not eliminate the problem so as to

77a. S. 2(6). 78. See supra note 52.

592 JOURNAL OF THE INDIAN LAW INSTITUTE JVol. 27 : 4

dismiss it. Today because of the H.G.L.A. an apparent equality in the copar­

cenary covers a real inequality in which the learned abuse their strength and advantage with impunity.79 The indifference, the pain of deprivation, hesitation to spend on education of coparceners or the false pride of sacrifice in the minds of unlearned coparceners and the guilt cons­cience of unjust enrichment and suspicion in the minds of learned copar­ceners speak of unpleasant state of law. An unlearned coparcener would ask, 'shall I risk an expense (or labour) of which the burden will be cer­tain, and which falls entirely upon me, while the benefit of it will be pre­carious and divided?**0

VI Conclusion and suggestions

The H.G.L.A. was passed to protect the interests of a coparcener's labour from unjust operation of the capital-oriented principle, i.e., the doc­trine of detriment. By confining its advantages only to learned coparceners and by ignoring the need for reimbursement of educational expense, the H.G.L.A. has caused serious imbalance in the society where mobility to outside employment is more. For the sole reason that the learning, skill and labour of unlearned coparceners are applied on family property, fruits of their labour are not protected against sharing with idlers.

Today the H.G.L.A. has made a dent into the countryside.81 But its failure to compensate all factors of production in proportion to their role in the economic process has created injustice and deprived equal pro­tection of the laws. However, reverting back to the prc-1930 position would also cause similar injustice. The following suggestions can be made to avert present injustice:

(?) When the property of a Hindu joint family is protected and/or developed by the skill, experience and labour of the coparcener/s, hc/thcy shall be adequately compensated for their inputs.82 This position can be reached even by judicial interpretation by regarding the part of the accre­tions from the experience, skill and labour of the coparcener as "merely by reason of...learning" for the purpose of the H.G.L.A. as informal learning is also learning.

(II) The learned coparcener shall be required to reimburse to the

79. Ibid. 80. Examining the evil prevailing in tenancy-in-common Jeremy Bentham poses this

question. See Jeremy Bentham, Theory of Legislation 61-62 (1975). 81. Contrary opinion was held by J.D.M. Derrett, who points out that the H.GX.A>

has hardly been absorbed by the villagers. See J.D. M. Derrett, Religion, Law and the State in India 341 (1968). The opinion survey conducted by the author has suggested otherwise. See supra note 52.

82. This should be after deducing the expenses of his suitable maintenance.

1985] THE HINDU GAINS OF LEARNING ACT 593

family the extra outlay of the family funds in his specialised education83

with reasonable interest. The reimbursement may be through debiting the expenses to his share at partition.

For the sake of uniformity and certainty, a legislative amendment on these lines may be desirable. There may be certain difficulties in evalua­ting the labour and contribution of unlearned coparceners and also the advantages derived by them from the family. Assessing the expenses of learning may also be a difficult task. If not a chemist's balance at least a butcher's scale is to be provided by the law where mathematical preci­sion is an impossibility. The fact that unlearned coparceners are not organised and face the problems at different points of time would make the need for reform compelling as the injustice resulting is glaring.

P. Ishwara Mat*

83. Specialised education is any education received after matriculation. It should be remembered, compulsory education should be provided up to one's 14 years as per article 45.

♦Lecturer in Law, Department of P.G. Studies and Research in Law, University of Mysore. The author expresses his gratitude to G.V. Ajjappa, Head, P.G. Depart­ment of Law, Karnatak University, Dharwar, and T. Devidas, Reader in Law, Department of Post-graduate Studies and Research in Law, Manasagangothri, Mysore, farJWMsficial discussions he had with them on the draft of this paper.