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FAMILY LAW-II
COPARCENARY
B.A. LL.B. (HONS.), 4th SEMESTER
SUBMITTED TO SUBMITTED BY
Dr. Shashank Shekhar Gaurav
Section-A
ACKNOWLEDGEMENT
First of all, I would like to thank my teacher of the subject “Family Law”, Dr. Shashank
Shekhar, for providing every bit of help and also showing the way in which to proceed and
how to go about the project. I would also like to thank my parents, friends and others who
helped me immensely at every step and gave every possible bit of help that I needed in
preparing the project and making it look presentable in a good way. I would also like to thank
the library staff of RMLNLU who provided me with books that I needed in making and
preparing the project and other pieces of information and help that was required. At last I
would like to sincerely thank God who gave me the much need strength and power to go
ahead with the project and make it in a presentable way.
TABLE OF CONTENTS
JOINT HINDU FAMILY.......................................................................................................................4
COPARCENARY..................................................................................................................................5
GENESIS OF COPARCENARY..................................................................................7
INCIDENTS OF COPARCENARY..............................................................................8
DIFFERENCE BETWEEN JOINT HINDU FAMILY AND COPARCENARY.........................8
DAYABHAGA SCHOOL ON COPARCENARY.............................................................8
COPARCENER’S RIGHTS........................................................................................ 9
COPARCENARY WITHIN COPARCENARY................................................................9
COPARCENARY PROPERTY...........................................................................................................10
CHARACTERISTICS OF THE COPARCENARY PROPERTY........................................................10
ELEMENTS OF A COPARCENARY PROPERTY.........................................................10
COPARCENER’S POWER OF ALIENATION..............................................................11
SALE AND MORTAGE.......................................................................................... 11
SOLE SURVIVING COPARCENER..........................................................................11
THE AMENDMENT OF 2005 IN THE HINDU SUCCESSION ACT...............................................12
BIBLIOGRAPHY...............................................................................................................................13
JOINT HINDU FAMILY
A Hindu Joint family consists of the common ancestor and all his lineal male descendants
upto any generation together with the wife or wives (or widows) and unmarried daughters of
the common ancestor and of the lineal male descendants. The existence of the common
ancestor is necessary for bringing a Joint family into existence, for its continuance common
ancestor is not a necessity.1
According to Sir Dinshah Mulla, “A Joint Hindu family consists of all persons lineally
descended from a common ancestor and includes their wives and unmarried daughters. A
daughter ceases to be a member of her father's family on marriage, and becomes a member of
her husband's family.
A Joint and undivided family is the normal condition of Hindu society. An undivided Hindu
family is ordinarily Joint not only in estate, but also in food and worship. The existence of
Joint estate is not an essential requisite to constitute a Joint family and a family, which does
not own any property, may nevertheless be Joint. Where there is joint estate, and the members
of the family become separate in estate, the family ceases to be Joint. Mere severance in food
and worship does not operate as a separation.
The property of a Joint family does not cease to be Joint family property belonging to any
such family merely because the family is represented by a single male member who possesses
rights which an absolute owner of a property may possess. It may even consist of two females
members. There must be at least two members to constitute Joint Hindu family. A single male
or female cannot make a Hindu Joint family even if the assets are purely ancestral.
In Narendranath v. Commissioner of Wealth Tax,2 the Supreme Court held that the
expression 'Hindu undivided family' in the wealth Tax Act used in the sense in which a Hindu
Joint family is understood in the personal law of Hindus and a Joint family may consist of a
single male member and his wife and daughters and there is nothing in the scheme of the
Wealth Tax Act to suggest that a Hindu undivided family as assessable unit must consist of a
least two male members.
1 Extract From Online Family Law II Notes, Visited on March 3, 2018at <http://mayank-
lawnotes.blogspot.in/2007/01/family-law-ii.html>
2 AIR 1965 AP
3 (1935) 37 BOMLR 692
property, therefore the income of the assesse should be taxed as the income of a Hindu
undivided family.
In Anant v. Shankar,4 it was held that on the death of a sole surviving coparcener, a Hindu
Joint Family is not finally terminated so long as it is possible in nature or law to add a male
member to it. Thus there can also be a Joint family where there are widows only.
COPARCENARY
A species of estate, or tenancy, which exists where lands of inheritance descend from the
ancestor to two or more persons. It arises in England either by common law or particular
custom. By common law, as where a person, fee-tail, dies, and his next heirs are two or more
females, his daughters, sisters, aunts, cousins, or their representatives; in this case they all
inherit, and these coheirs are then called “coparceners”.
A Hindu Coparcenary is a much narrower body than the Joint family, which is purely a
creation of law. The conception of a Joint Hindu family constituting a coparcenary is that of a
common male ancestor with his lineal descendants in the male line within four degrees
counting from, and inclusive of, such ancestor. It includes only those persons who acquire by
birth an interest in the Joint or Coparcenary property. 5 These are sons, grandsons and great
grandsons of the holder of the Joint property for the time being. After the amendment of the
2005, a daughter has been included as a coparcener along with the sons of the coparcener.
Difference between ancestral property and separate property is the interlinked with the
concept of Coparcenary. The property jointly inherited by a Hindu by birth along with his
sons, grandsons and great grandsons from his male lineage of ancestors is ancestral property. 6
All other property is included under separate property.
Though every coparcenary must have a common ancestor to start with, it is not to be
supposed that every extant coparcenary is limited to four degrees from the common ancestor.
When a member of a joint family is removed more than four degrees from the last holder, he
cannot demand a partition, and therefore he is not a coparcener. On the death, however, of the
last holder, he would become a member of the coparcenary, if he was fifth in descent from
him and would be entitled to a share on partition, unless his father, grandfather and great-
grandfather had all predeceased the last holder. Whenever a break of more than three degrees
occurs between any holder of property and the person who claims to enter the coparcenary
after his death the line ceases in that direction and the survivorship is confined to those
collaterals and descendants who are within the limit of four degrees.
4 (1944) 46 BOMLR 1
5 Surjith Lal Chhaabda v. CIT Bombay AIR 1976 SC 109
6 Sundar Lal v. Chhittar Mal (1907) 29 All 1
In Ceylon- Attorney-General of Ceylon v. A. R. Arunachalam Chettiar,7 case a father and
his son constituted a joint family governed by Mitakshara School of Hindu Law. The father
and the son were domiciled in India and had trading and other interests in India. The
undivided son died and father became the sole surviving coparcener in a Hindu Undivided
family to which a number of female members belonged. In this the court said that the widows
in the family including the widow of the predeceased son had the power to introduce
coparceners in the family by adoption and that power was exercised after the death of son.
In Moro Vishwanath v. Ganesh Vitthal,9 plaintiffs and defendants are descendants of one
Udhav. The defendants are all fourth in descent from him. The plaintiffs, however are, some
fifth, and others sixth in descent from him. The question, however, whether, assuming them
to be undivided, the plaintiffs are entitled to sue at all for a partition according to Hindu Law,
is one of considerable importance and difficulty. It was urged that Plaintiffs cannot claim
from the defendants any partition of property descended from that common ancestor. It was
held that upon a consideration of the authorities cited, it seems to me that it would be difficult
to uphold the appellants' contention that a partition could not, in any case be demanded by
descendants of a common ancestor, more than four degrees removed, of property originally
descended from him.
GENESIS OF COPARCENARY
A Hindu male A, with self-acquired property without the help or financial support of his
ancestors has a son B. B with his three sons or daughters C, D and E and with their children
F, G and K. The main family will constitute the above mentioned members i.e. up to four
generations. I, J and K constitute branch families. All these families have one common
ancestor A. On the death of A, I and J will be added to the coparcenary. On A’s death the self-
acquired property of A during A’s lifetime is inherited by B. B’s three children C, D and E
takes a vested interest in the property by reason of birth. This property inherited by B will
become ancestral property in B’s hands. After the death of A, his children C, D and E and
their children F, G and H are coparceners as regards the property.
It is to be noted that coparcenary is not always limited to four degrees from common
ancestor. A member of a joint family may be removed more than four degrees from common
ancestor, and yet he may be a coparcener. But the rule states that partition can only be
demanded by any member of a joint family, who is not removed more than four degrees from
the last holder. On the death, however of the last holder, he would become a member of the
coparcenary, if he was fifth in descent and would be entitled to a share in the partition.
Whenever a break of more than three degrees occurs between any holder of the property and
the person who claims to enter the coparcenary after his death, the line ceases in that
direction.
INCIDENTS OF COPARCENARY
The lineal male descendants of a person upto the third generation, acquire on
birth ownership in the ancestral properties of such person.
Such descendants can at any time work out their rights by asking for partition.
10 Table showing the illustration of a coparcenary in the Hindu family, Visited on March10, 2018at
<http://www.payer.de/dharmashastra/dharma0915.gif >
Till partition each member has got ownership extending over the entire property
conjointly enjoyment of the properties is common.
As a result of such co-ownership the possession and enjoyment of the
properties is common.
No alienation of the property is possible unless it is for necessity, without the
concurrence of the coparceners.
The interest of a deceased member passes on his death to the surviving
coparceners.11
Every coparcener and every other member of the joint family has a right of maintenance out
of the joint family property. The right of maintenance subsists through the life of the member
so long as family remains Joint. No female can be a coparcener under Mitakshara law. Even
wife, though she is entitled to maintenance.12
2. Joint Hindu family consist of male and female members of a family whereas in
Coparcenary no female can be a coparcener.
3. Coparceners are members of the Joint Hindu Family whereas all the members of Joint
Hindu family are not Coparceners.13
COPARCENER’s RIGHTS
Right of joint Ownership
Right of joint Possession, enjoyment and use of joint family property
Right of Survivorship
11 Supra Note 20
12 Ibid
13 Ibid
Right of Alienation of undivided interest
Right to Challenge an improper Alienation made by the Karta
Right of Maintenance
Right to Partition14
Example: a coparcenary consists of A and his three sons B, C and D and two sons of C, CS
and CS1 and three sons of D, DS, DS1 and DS2, C and D acquire separate properties and die.
CS and CS1 inherit the separate property of C and between themselves constitute a
coparcenary. DS, DS1 and DS2 inherit D’s separate properties and constitute a coparcenary
headed by A two sub-coparcenaries come into existence. If sons are born to CS, CS1 or DS,
DS1 and DS2 they will get a birth right not merely in the coparcenary headed by A but also in
their respective sub-coparcenaries.15
COPARCENARY PROPERTY
Although the preamble to the Hindu Succession Act declares that the act amends and codifies
Hindu law of intestate succession, yet third chapter deals with the testamentary succession
not impliedly but boldly and to some extends radically. The effect of this provision is that
when a person bequeaths his or her property by will, the succession under the act is excluded
and the property passes to the testamentary heirs.16
14 Vijender Kumar, “Hindu Law of Coparcenary And Its Composition”, Visited on March 10, 2018 at
<http://scribd.com> , p.40
15 Ibid
16 Sadhu Singh v. Gurudwara Sahib Narike (2006) 8 SCC 75
Where a Hindu dies after the commencement of the Amendment Act 2005, his interest in the
property of the joint Hindu family governed by the Mitakshara Law shall devolve by
testamentary or intestate succession and not by survivorship and the coparcenary property
shall be deemed to have been divided as if a partition had taken place. Any property to which
a female Hindu becomes entitled to under this Amendment Act 2005, shall be a property
capable of being disposed of by her by testamentary disposition i.e. by way of Will.
Property jointly acquired by the members of the joint family of HUF nucleus.
Separate property of a member donated to the joint cause with the intention of
abandoning all his separate claims on it, which becomes the property of joint family.
Property acquired by all or any of the coparceners with the aid of joint family funds.
BIBLIOGRAPHY
BOOKS
Dr. Paras Diwan, Family Law, (9th Edn., Allahabad Law
Agengy, 2009)
Dr. T.V. Subba Rao and Dr. Vijendra Kumar, Family Law in
India, (9th Edn., S. Gogia and Company, 2007)
E-ARTICLES
The SC Judgement dated 12-10-2012 on The Amendment of 2005 in The Hindu
Succession Act, 1956 at <http://ecopackindia.wordpress.com/tag/coparcenary/>
Pramod Singh. “Women's Right In Coparcenary Property” at
< http://leguminfo.com/node/71>
Online Family Law II Notes at <http://mayank-lawnotes.blogspot.in/2007/01/family-
law-ii.html>