FAMILY LAW

II
SEMESTER 4
PROJECT

TOPIC: COPARCENARY UNDER

MITAKSHARA LAW

Submitted to:. Submitted

by:.
Ms Archana Agarwal.
AnushkaSharma
A3211117141
BALLB(H)

Concept of Joint Hindu Family or Hindu Undivided Family

A Joint Hindu Family is the normal condition of Hindu Society, or atleast it was until the last
few decades. A joint Hindu family is a group of relatives tied together by ties of kinship &
marriage and descended from a common ancestor. It includes children, children’s children down
the line, spouses. A joint Hindu Family is normally joint in worship/kitchen/business. Even
daughter in laws/widowed daughters who has returned back to their parental side are part of a
hindu joint family. A joint family may encompass countless generations.

A joint family is headed by a karta who is normally the eldest living male member of the family.
Karta has some peculiar rights and obligations under traditional Hindu Law, he has the power
and duty of superintendence of how the joint family is run, who is getting what ?, how the
members are being maintained ? He is also entitled to dispose off the property in times of dire
need/necessity. After 2005 amendments by which women have been given equal proprietary
rights in ancestral property even women can be Kartas.

A Coparcenary
Within the joint family there is a narrower body called the Coparcenary. This includes the eldest
male member + 3 generations. For eg : Son – Father – Grandfather – Great Grandfather. This
special group of people are called coparceners and have a definitive right in ancestral property
right since the moment of their conception. Earlier only a Son/Son’s son/Son’s son’s son were
coparceners – now daughters are equally coparceners after 2005. They can get their share culled
out by filing a suit for partition at any time. A coparceners interest is not fixed it fluctuates by
birth and deaths in the family.

Ancestral & Self Acquired properties​.

A property is ancestral when acquired through inheritance from ancestors, this property is always
shared by members of a coparcenary equally. On the other hand property is self acquired if it is
earned by own efforts/learning or other human endeavour. In the latter – the person acquiring is
the sole owner and nobody exercises any right on the same during his lifetime.

Partition

Any coparcener can at anytime seek a partition of his share. The continuing coparceners can seek
to buy out the share of coparcener expressing his intention to move out by exercising the right of
‘pre-emption’.

Can a Coparcenor sell/gift/dispose off his right in ancestral/coparcenary property ?

Yes – a coparcener can sell/gift away his interest to another coparcenor or even a third party.
However a third parties right to take possession of property alongwith rest of coparcenory is
limited. The family can buy the third party out in order to maintain integrity of the house and to
prevent a stranger from getting in with the family. This right is given by Transfer of Property Act
as well as the Partition Act.

Can a Karta dispose of coparcenary property without consent of the family/coparcenary ?

Yes in cases of legal necessity/benefit of estate the karta can alienate joint family property.
However such an alienation can be challenged by the continuing coparceners as not being for
legal necessity or benefit of estate within 12 years of knowledge of sale/gift.

What are the Rights and Duties of Coparceners?

The following are the fourteen main rights of a coparcener:

1. Community of interest and unity of possession:

No coparcener is entitled to exclusive possession of any part of the coparcenary property; nor is
any coparcener entitled to any special interest in such property.As observed by the Privy Council
in Katama Natchairv. Rajah of Shivaganga (1893 9 M.I.A. 539), “there is community of interest
and unity of possession between all the members of the family”.

2. Share of Income:
A member of a joint family cannot, at any given moment, predicate what his share in the joint
family property is. Such a share becomes defined only when a partition takes place. The reason is
that his share is a fluctuating one, which is liable to be increased by deaths, and diminished by
births, in the family. It follows from this that no member is also entitled to any definite share of
the income of the property.

According to the principles governing a Hindu undivided family, the whole income of the joint
family property must be brought to the common purse of the family, and then dealt with as per
the rights of the members to enjoy such property.

3. Joint possession and enjoyment:

Each coparcener is entitled to joint possession and enjoyment of the family property. If he is
excluded from doing so, he can enforce this right by way of a suit. He is not, however, bound to
sue for partition. In a suit for joint possession, the Court would declare his right to joint
possession, and further direct that he should be put into such joint possession.

4. Right against exclusion from joint family property:

If a coparcener is excluded by other coparceners from the use or enjoyment of the joint property,
the Court may, by an injunction, restrain such coparceners from obstructing him in the
enjoyment of the property.

In one case, A and В were members of a joint family. A prevented В from using a door which
was the only means of access to the rooms which were in B’s occupation. It was held that, in the
circumstances, the Court could, by injunction, restrain A from disturbing В in the use of the
door. (Anani v. Gopal, 1895, 19 Bom. 269)

In another case, A and В were members of a joint family, which owned a shop in Poona. A
prevented В from entering the shop, inspecting the account books, and taking part in the general
management of the shop. В sued A for an injunction, restraining A from excluding В from the
joint possession and management of the shop, and the Bombay High Court held that В was
entitled to succeed. (Ganpat v. Annaji, 1899 23 Bom. 144)

5. Right of maintenance and other necessary expenses:

Every coparcener is entitled to be maintained out of the estate of the family. For this purpose, he
is entitled to receive, from the coparcenary property, maintenance for himself, his wife and
children, as also for those whom he is bound to maintain. Besides such maintenance, a
coparcener is also entitled to get money from the coparcenary property for the purpose of the
marriage of his children and for the performance of the sradha and upanayana ceremonies.

6. Right to restrain improper acts:

Every coparcener has the right to restrain improper acts on the part of other coparceners, where
such acts cause substantial injury to his rights as a member of the family. Thus, if a coparcener
erects a building on land belonging to the joint family, so as to materially alter the condition of
the property, he may be restrained by an injunction from doing so.

7. Right to enforce partition:

Every adult coparcener is entitled to enforce a partition of a coparcenary property. He cannot,
however, file a suit for a declaration of the amount of his share, as he has no definite share, until
partition.

In one leading case (Appaji v. Ramchandra, 16 Bom. 29), the Bombay High Court held that there
is one important exception to the above rule, namely, that where the father is joint with his own
father or other collateral members, a son cannot enforce a partition against the will of the father.
This exception is also recognised in the State of Punjab also, but not in other parts of India.

8. Right to account:
A coparcener has no right to ask for accounts from the manager as regards his dealing with the
coparcenary property and the income thereof, unless of course, such coparcener is suing for a
partition, in which case, he would have such a right.

9. Right of alienation:
No coparcener can dispose of his undivided interest in coparcenary property by gift. Nor can he
alienate such interest for value, except in the State of Tamil Nadu, Madhya Pradesh, Maharashtra
and Gujarat. An unauthorised alienation is not however, absolutely void; it is merely voidable at
the option of the other coparceners.
However, it is open to a creditor, who has obtained a decree against the coparcener personally, to
attach and sell his undivided interest, and if this is done, the purchaser can have his interest
separated by a suit for partition.

10. Right to impeach unauthorised alienations:

Every coparcener has the right to impeach alienation by the manager, or any other coparcener, in
excess of their powers. Such alienation can be impeached only by a coparcener or by a transferee
who has acquired the entire interest of a joint family in the property alienated.

11. Right to renounce:

A coparcener has the right to renounce his interest in the coparcenary property. He can do so by
expressing his intention to that effect, and if he does so, no other formalities would be necessary.
Such a renunciation must, however, be in favour of the whole body of coparceners. Even if he
renounces in favour of one individual member, the renunciation will operate for the benefit of all
the coparceners.

12. Right of survivorship:

All the coparceners of a joint Hindu family have a right of survivorship in respect of the joint
family property. Thus, if one coparcener dies, his undivided interest in such family passes by
survivorship to the remaining coparceners, and not to his heirs by succession. (The
circumstances in which this right of a coparcener does not exist have already been considered
earlier.)

13. Right to make self-acquisition:

A coparcener has the right to acquire property of his own, and keep it as his self-acquired
property. The other coparceners would have ho claim on such property.
14. Right to manage:
A coparcener, who is the senior-most member of the family, is entitled to manage the
coparcenary property and business, and to look after the interests of the family on behalf of the
other coparceners, unless he is incapacitated from doing so by illness or other like and sufficient
cause.

Can Daughters become coparceners in a joint Hindu family under law?

A Hindu joint family comprises all persons lineally descended through males from a common
ancestor including their wives and unmarried daughters. Whereas a Hindu Mitakshara
Coparcenary is a body narrower than a Hindu joint family and consists only of males of upto 4
generations who acquire an interest in the Coparcenary property or the joint family property by
birth with a unity of possession. The person having interest in the coparcenary property is known
as a coparcener.

Coparcenary property consists of the ancestral property and not the separate property of a
coparcener. Ancestral property is the property inherited by a Hindu from his father, father’s
father or father’s, father’s father whereas the property inherited from any other relation or the
self-acquired property of the person is his separate property.

Classical Law
The two main schools of Hindu law are Mitakshara school and Dayabhag school. The
Mitakshara law is applied in whole of India except the states of Bengal and Assam where the
Dayabhag system is followed.
The Mitakshara Coparcenary recognizes 2 modes of devolution of property which are
survivorship and succession. The principle of survivorship applies to joint family coparcenary
property whereas succession applies only to separate property. Females are absolutely excluded
from the Mitakshara coparcenary.

On the other hand, Dayabhag recognizes only succession as the mode of devolution. Here no
member of the family has a right by birth and every member holds his property as a tenant in
common and on his death the property passes on to his heirs.

Now while bringing in the Hindu Succession Act, 1956 the legislature had the option to
assimilate Dayabhaga and Mitakshara law in the sense that in Mitakshara also no member has a
right by birth and on the death of the member the property passes to his heirs. This method
would have given equable treatment to the nearest female heirs of a coparcener. But the
legislature chose to retain the Mitakshara Coparcenary and to confer on the daughters and the
other female members mentioned in class I of the schedule (widow, mother, daughter of a
predeceased son, daughter of a predeceased daughter, widow of a predeceased son, daughter of a
predeceased son of a predeceased son, widow of a predeceased son of a predeceased son), the
right to share the undivided interest of the deceased coparcener through intestate succession. This
disentitled the female members from the right of joint ownership of the ancestral property thus
keeping them out of the Coparcenary which led to inequality against them.

Important Amendments
To remove this inequality many states came up with amendments. States of Andhra Pradesh,
Tamil Nadu, Maharashtra and Karnataka inserted provisions wherein the daughter was made a
coparcener by birth in the joint family property in her own right in the same manner as the son.
This scheme was followed by the central legislature which passed the Hindu Succession
Amendment Act, (2005). This act made the daughter a coparcener by birth. It also omitted
Section 23 of Act which dis entitled a female heir to ask for partition in respect of a dwelling
house, wholly occupied by a joint family, until the male heirs choose to divide their respective
shares therein. Thus this amendment removed the discrimination against females.What are the

Characteristic Features of Mitakshara Coparcenary?

Characteristic features of Mitakshara Coparcenary are as follows:

In State Bank of India v. Ghamandi Ram, the Supreme Court observed: “A coparcenary under
the Mitakshara School is a creation of law and cannot arise by act of parties except in so far that
on adoption the adopted son becomes a coparcener with his adoptive father as regards ancestral
properties of the latter. The incidents of coparcenership under Mitakshara law are:

(i) First, the lineal male descendants of a person upto third generation, acquire on birth
ownership in the ancestral properties of such person,

(ii) Secondly, that such descendants can at any time work out their rights by asking for partition;

(iii) Thirdly, that till partition, each member has got ownership extending over the entire property
conjointly with the rest;

(iv) Fourthly, that as a result of such co-ownership the possession and enjoyment of properties is
common;

(v) Fifthly, no alienation of the property is possible unless it be necessity, without the
concurrence of the coparceners;
(vi) Sixthly, that the interest of the deceased member lapses on his death to the survivors;”

The following are the characteristic features of the Mitakshara coparcenary​:

(1) Unity of Ownership:

The essential feature of a Mitakshara coparcenary property is unity of ownership, i.e., the
ownership of property is not vested in a single coparcener. It is vested in whole body of
coparcenary. According to the true notion of an undivided family governed by the Mitakshara
law, no individual member of that family whilst it remains undivided, can predicate, of the joint
and undivided property, that he has a definite share.
In Thammavenkat Subbamma v. Thamma Ratamma, the Supreme Court affirming the above
view held that the essential feature of Mitakshara coparcenary is unity of ownership and
community of interest. No coparcener has any definite share in the coparcenary property
although his undivided share is existent there, which increases with the death and decreases with
the birth of any coparcener. The coparcener acquires an interest in coparcenary property by birth,
which is equal to that of his father.

(2) Indeterminability of Shares:

The interest of a coparcener in the coparcenary property is a fluctuating interest which is liable to
diminish with the birth and bound in increase with the death of any coparcener in the family. So
long the family remains united; no individual coparcener can predicate that he has a definite
share in the property of the family.
In Commissioner of Gift-tax v. N.S. Getty Chettiar, the Court upholding the above view held that
so long the family remains undivided; no individual coparcener can claim any specific share in
the joint family property. All the coparceners are the owners of entire joint family property.
Their shares can be specified only after the partition is effected in the joint family. The share of
any coparcener is thus unpredictable and unspecified before partition.

Recently, in Munni Lal Mahto and others v. Chandeshwar Malito and others, the Court
upholding the above view held that if any coparcener of joint Hindu family transfer the
coparcenary property by way of gift without consent of other coparceners, it is void, because all
the coparceners are the owners of entire joint-family property and joint family continues, and the
coparcenary interest is an indeterminate. It becomes determinate only when the states of
jointness is broken.

(3) Community of Interest:

There is community of interest in the coparcenary property. The moment a person is born in the
family, he acquires an interest in the coparcenary property in the sense that he has a right of
common enjoyment and common use of all the properties, because as soon as he is born as a son,
he assumes the membership of the community.
It also signifies that no coparcener is entitled to any special interest in the coparcenery property,
nor is he entitled to exclusive possession of any part of the property. As it has been rightly
observed by the Privy Council that “there is community of interest and unity of possession
between all members of the family.” No coparcener can say with certainty that he is entitled to
one half or one fourth as it is the essence of coparcenary property that there is community of
interest and unity of possession.

The shares of individual coparceners cannot be defined. All the coparceners have a right of
common enjoyment or common use of the property. It signifies two implications: firstly,
possession of one coparcener in the possession of all coparceners, and secondly, no coparcener
has a right of exclusive possession of any portion of joint property.

(4) Exclusion of Females:

In Mitakshara coparcenary no female can be its members, though they are members of joint
family. Even the wife who is entitled to maintenance enjoys only the right to maintenance but
she can never become a coparcener.
Thus a female does not have the right to demand partition. Since she is not a coparcener, she
cannot become the Karta of the family. An alienation of the property of the joint family by her
will not be binding on her sons and daughters. The alienation of her own share is not binding
upon herself.
It is worthwhile to mention that the Hindu Women’s Right to Property Act, 1937, conferred a
special status on the widow and made them eligible to inherit the coparcenary interest along with
her sons, although she took it as a limited estate. Thus she acquired the status like that of
coparcener entitled to a share, equal to that of her sons. For example, A who constitutes a
coparcenary with his two sons, namely, В and C, dies leaving behind his widow, W, two sons, В
and C. Under the Hindu Woman’s Right to Property Act, 1937, W inherited the coparcenary
property along with В and С and would get 1/3 share each.

(5) Devolution by Survivorship:

One of the distinctive features of coparcenary is that the coparcenary interest of a coparcener in
coparcenary property on his death does not devolve on his heirs by succession but on the other
hand it passes by survivorship to the other coparceners. Thus right by birth and right of
survivorship are necessary incidents of community of interest and unity of ownership, which
signify joint possession not an exclusive possession.

(6) Right of Maintenance:

All the members of coparcenary are entitled to maintenance by birth out of joint family property.
They continue to enjoy this right so long the coparcenary subsists. Where any member fails to
get any share on the coparcenary property even after partition he retains the right of maintenance.

Some special provisions have to be made for them at the time of partition. Female members and
other male members who do not get a share on partition such as unmarried daughters, idiots or
lunatics, are entitled to maintenance out of joint family property. Unmarried daughters have a
right to be married out of joint family funds.

Where a coparcener married under Special Marriage Act, 1954, he is separated from
coparcenary. He can form separate coparcenary along with his male descendants.

Hindu Succession Amendment Act, (2005) and females as coparceners

The most significant amendment made by the Hindu Succession Amendment Act, (2005) was to
make the daughter a coparcener by birth in her own right. The term Mitakshara Coparcener now
includes daughters in it. A daughter now has the same rights in the Coparcenary property as that
of a son and is subject to the same liabilities as that of a son in respect of the said Coparcenary
property. For example if the coparcenary property is subject to some debts then on partition the
female as a coparcener would also be liable to pay the debts over her share of the property and
thus is subject to the same sets of liabilities as that of a son in respect of the said property. Also
any property which a daughter obtains under the amended section will be held by her with the
incidents of Coparcenary property and she can dispose it off by the testamentary disposition.
This act also abolishes survivorship and the only modes of devolution now followed are
testamentary or intestate succession. Further in case of notional partition the daughter is allotted
the same share as is allotted to a son. This act also removes the obligation of a son, grandson or
great grandson to pay the debts of his father, grandfather or great grandfather solely on the
ground of his pious obligation thus bringing equality amongst sons and daughters.

The Hindu Succession Act, 2005 applies to all daughters including those who are married, but
this act does not apply to daughters married before the commencement of the Hindu Succession
Amendment Act, 2005. Moreover, the provisions of the amendment act do not apply in case
where the partition of the joint Hindu family has already been effected before 20th December
2004.