HINDU COPARCENARY

The primary purpose of understanding the concept of Mitakshara coparcenary was

spiritual in nature. A coparcener in relation to the father is a person who can offer a
funeral cake to him. This capability to offer spiritual salvation by the performance of
funeral rites was with the son, son of a son (grandson), and son of a son of a son (great-
grand son) and as a consequence of it they were conferred a right by birth in the property
of the father. This religious aspect that associated it primarily with relationship and
spiritual benefits and not merely from the property perspective was totally sidelined later
by the legal aspect. The revenue authority's view was that coparcenary purely from the
property angle. Presently it is understood to ascertain the rights and obligations of the
members in the joint family property that is also called as ancestral property or the
coparcenary property.
Hindu coparcenary is a much narrower body than the Hindu joint family. It includes only
those persons who acquire by birth an interest in the joint or coparcenary property and
these are the sons, grandsons and great grandsons of the holder of the joint property for
the time being, that is to say, the three generations next to the holder. The essence of a
coparcenary is unity of ownership with the necessary appendage of unity of possession.
No coparcenary can commence without a common male ancestor, though after his death it
may consist of collaterals such as brothers, uncles, cousins, nephews etc. A coparcenary
is purely a creature of law and cannot be created by contract. But the adopted person may
be introduced as a member of the coparcenary and after the death of common ancestor
coparcenary of brother can be created. Ordinarily, a coparcenary will end with the death
of the surviving coparcener, very interestingly but if surviving coparcener dies leaving a
widow having authority to adopt a son to him, coparcenary will be continued. The reason
is that a family cannot be ended if there is a possibility of adding any male member to it.
It should be very well remembered that though every coparcenary must have a common
ancestor to start with, it is not to be supposed that every coparcenary is limited to four
degrees from the common ancestor. After the death of common ancestor or any other last
holder of the property, the fifth in descent from him would become a member of the
coparcenary, provided his all three immediate male ancestor i.e., the father, grandfather
and the great grandfather had not predeceased the last holder, for that is another important
rule of Hindu law that 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.1
The Hindu Succession (Amendment) Act, 2005, amended Section 6 of the Hindu
Succession Act, 1956, allowing daughters of the deceased equal rights with sons. In the
case of coparcenary property, or a case in which two people inherit property equally
between them, the daughter and son are subject to the same liabilities and rights. The
amendment essentially furthers equal rights between males and females in the legal
system. The most significant amendment made by the Hindu Succession Amendment

1
http://shodhganga.inflibnet.ac.in/bitstream/10603/54475/9/09_chapter%202.pdf , at page no 6 ,7
Act, (2005) was to make the daughter a coparcener by birth in her own right. The term
Mitakshara Coparcener now includes daughters in it.. 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. 2

Features of coparcenary:
Unpredictable and fluctuating interest: the most remarkable feature of interst by
birth is that the interest which a coparcener acquires by birth is not a specified
or fixed interest . the interest fluctuates with births and deaths in family. for
instance a corparcenery consist of father F and son A. if partiotn tajes place
each will get ½ share of property . if no partition take place and another son B is
born . the interest will fluctuate and now upon partition each will get 1/3 share .
there will be converse case in situation of deaths.3
Community of interest: the nature of ownership of mitakshara coparceners in
joint family property is communal ownership .whatever is there belongs to all of
them .the moment a person is born in family he acquires an interest in the sense
that he has a right of common enjoyment and common use of all the properties
because of virtue of being born a son , he becomes a member of community. So
long as he is alive he has an interest and cannot be denied of common
enjoyment and common use4.

2
Richa arya,“Can Daughters become coparceners in a joint Hindu family under law?”,ipleaders, viewed at 2
april,2019
https://blog.ipleaders.in/can-daughters-become-coparceners-in-a-joint-hindu-family-under-law/

3
Diwan, Paras, and Peeyushi Diwan. Modern Hindu Law: (Codified and Uncodified). Allahabad Law Agency,
2016. At at page no291
4
Ibid at page no292
Unity of possession: this means that all the coparcener have right of common
use of property.this may be explained by the reference to two implication one,
the possession of one coparcener is possession of all the corparcener . if one
coparcener is in possession of joint family property through him all other
coparcener are also deemed to be in possession this implies in absence of clear
proof of ouster ,the coparcener in possession of property cannot claim adverse
possession. Secondly,no coparcener has a right of exclusive possession of any
portion of joint family property. thus if a coparcener who is in possession of a
portion of joint family property is ousted from it, he cannot take legal action to
recover possession of same property. what he is entitled to is joint possession
not exclusive possession.5
Devolution by survivorship: the interest of coparcener in the 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.
Right to 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.
Illegitimate son as coparcener.
Hindu law has never considered an illegitimate son as filius nullius. An illegitimate son
,particularly the dasi putra has always been regarde as member of his putative father joint
family and as such has aright to be maintained out of joint family funds during his entire
lifehowever he has not been considered a coparcener .their position is stlightly better in
sudras. During the lifetime of his father he is not the coparcener and has no right to ask
for partition. But if partition takes place father is free to allot share to him as equal to that
of a legitimate son . after the death of father he becomes a coparcener with the legitimate
son and can ask for partition , though he is entitled to take only half a share of what he
would have taken had he been a legitimate son.6

Coparcenary between sane and insane person

There can be a coparcenary between sane and insane person. A coparcener can gets his
right in coparcenary property by birth and there is nothing in hindu law which shows that
such right is irrevocably extinguished on supervening insanity. Under the hindu law an
insane coparcener has no right to claim partition and has no right to share if partition
takes place, he is entitled for maintenance., but this does not make him cease to be

5
Supranote3 at page no293
6
Supranote3at page293
coparcener . when he is cured his both rights revive. Moreover his son is not excluded
from taking any share in partition7.
Coparcenary between a father ans sons born of civil marriage
If a Hindu marries with non- Hindu under special marriage act, 1954, his interest in the
joint family property is severed but does it mean there cannot be coparcenery between
such a Hindu and a son born to him out of marriage? A coparcenery will come into
existence between him and his son provided his son is Hindu.8

Incidents of Coparcenership. The main incidents of coparcenership under the

Mitakshara law are :
A coparcener has an interest by birth in the joint family property, though until partition
takes place, this is an unpredictable and fluctuating interest which may be enlarged by
deaths and diminished by births in the family every coparcener has the right to be in joint
possession and enjoyment of joint family property both these are community of interest
and unity of possession. Every coparcener has a right to be maintained including a right
of marriage expenses being defrayed out of joint family funds. Every coparcener is bound
by the alienation made by the karta for legal necessity or benefit of the estate and by the
legitimate acts of management of the karta every coparcener has a right to object and
challenge alienations made without his consent or made without legal necessity and every
coparcener has a right of partition and survivorship an establish his right of survivorship
by suit.9
N. JAYA LAKSHMI v. R.GOPALA10
When two brothers acquired the property jointly and later on one of the brother was not
heard to be alive for seven years the other brother would take the property by
survivorship.
The extent of the amendment Act, 2005: it extends the equal coparcenary right to a
daughter born into a family right from her birth, it will have a retrospective effect.
However, the amendment act 2005 is not retrospective in nature for the following
reasons:
 The opening the section 6 of the Act states “On and from the commencement of
the Hindu Succession (amendment) Act, 2005.”
 It has the condition that it will have no application in case where any disposition
or alienation including any partition or testamentary disposition of property had
taken place before 20.12.2004.

7
Supranote 3at page294
8
Supranote3 at page no294
9
Supranote3 at page no291
10
1995 S.C. 995
  Thus to get the benefit as per the amended Act, the following conditions need to
be satisfied:
1. She should have been born into the family.
2. The undivided coparcenary property must exist on 20.12.2004.
3. Partition of the property ought not to have taken place prior to 20.12.2004.
If any of the above three conditions are not satisfied then the benefit under the amended
act will not be available.11

Rights of a Coparcener
The following are the rights of a coparcener:12
1) Rights of Common Possession and Common Enjoyment:
There is unity of possession and the right of common enjoyment in the joint family
property available to all the coparceners. According to Privy Council –“there is
community of interest and unity of possession between all the members of the family .No
one is entitled to exclusive or special interest in coparcenary property nor to exclusive
possession of any part of it.”
(2) Community of Interest:
No coparcener has got any defined share in the coparcenary property, or in the income of
the property. In a Hindu undivided family governed by the Mitakshara law, no individual
member of that family, while it remains undivided can predicate that he has a certain
definite share in the property of the family.
But the Karta may allot to a member a particular property out of income whereof he is to
maintain himself, saving out of such income and property purchased there which becomes
the member’s separate property.
(3) Right to Joint Possession:
Each coparcener is entitled to joint possession and enjoyment of the family property.
Thus where a coparcener was prevented by the other members of joint family from using
a door or a staircase leading to the room in his occupation, it was held that he was entitled
to an injunction restraining the other members from disturbing the use of his door or the
common staircase.
(4) Right to Enforce Partition:

11
Jasleen kaur dua ,“Coparcenary in India: It’s Past, Present and Future,” academike, February 3,2015 ,viewed
at 5 april 2019
https://www.lawctopus.com/academike/coparcenary-india-past-present-future/

12
Agarwal,R.K, “Hindu law (codified and uncodified), central law agency, twenty-fifth edition, at page no347
Every coparcener including the minor is entitled to demand partition of his share. This
right can be claimed against his father or brother or the father and grandfather. He has
right to enforce partition at his will whether the other coparceners agree to it or not.
But the coparcener willing for separation must expressly communicate his desire to other
coparceners; the mode of communication may be different in different circumstances. It is
not necessary that other members have been formally informed about his desire. Once the
desire is pronounced, it effects a change in the joint status of the family and it is not
possible for the separating coparcener to restore its former status although where an
agreement is reached between the coparceners later, the reunion becomes possible.
(5) Right to Restrain Unauthorised Act:
A coparcener may restrain any unauthorised act e.g. erection of a wall or construction of a
building etc. of another coparceners in respect of coparcenary property if such act
interferes in any way the joint enjoyment thereof.
(6) Right to Ask For Account:
A coparcener may demand an account of the management of joint property in order to
have correct knowledge of the actual position of family funds. Thus where a member of
the joint family was prevented by the other members from entering a shop owned by the
joint family, inspecting the account book and taking part in the management of the shop it
was held that the latter could be restrained by an injunction from excluding the former
from the joint possession and management of the property.
(7) Right of Alienation:
A coparcener may alienate his undivided share in the coparcenary property by gift or
mortgage or sale with the consent of other coparceners. But according to the views of
Madras, Bombay and Madhya Pradesh High Courts a coparcener could alienate even
without such consent.
In Thamma Venkat Subbamma v. Thamma Rattamma13, the Supreme Court held that a
gift by a coparcener of his undivided interest in the coparcenary property is void. The
reason as why a coparcener is not entitled to alienate his undivided share in the
coparcenary property by way of gift is that an individual member of the joint family has
no definite share in the coparcenary property; a coparcener cannot deprive the other
coparceners of their right to the property. The object of this strict rule against alienation
by way of gift is to maintain the jointness of ownership and possession of the coparcenary
property.
There is no specific textual authority prohibiting an alienation by gift and the law in this
regard has developed gradually, but that is for the purpose of preventing a joint Hindu
family from being disintegrated. The vigour of this rule against alienation by gift has been
to some extent relaxed by the Hindu Succession Act, 1956, through its Section 30.

13
1987 AIR 1775, 1987 SCR (3) 236
(8) Right to Set Aside the Alienation:
Every coparcener has the right to set aside alienations made by the father, or the Karta or
any other coparcener beyond his authority. Such unauthorised alienations could also be
set aside at the instance of any after-born coparcener. The unauthorised alienations
include firstly, alienation without legal necessity; secondly, transactions incurring illegal
expenses; thirdly, alienations without any benefit to estate and such alienations would be
void.
RAMA CHANDRA v. BALLA SINGH14
The Allahabad High court said,where one of the coparceners sold away certain part of the
immovable property without any legal necessity, it was held that other coparceners are
entitled to cancellation of sale deed and recovery of possession.
Where the alienation of joint family property has been approved by some of the
coparceners while the others have not consented to it, the alienation would not be binding
on those who have not given their consent to it. The lawful alienations made by the father
cannot be avoided by the sons, but where the alienation is unlawful the sons, born before
or after the alienation could get it set aside.
(9) Right to Maintenance:
Every coparcener and every other member of a joint family property has a right to be
maintained out of the joint family property the right of maintenance subsist through the
life of the members as long as family remains joint.A coparcener’s wife and children are
entitled to be maintained out of coparcenary funds and a member of a joint Hindu family
is under a corresponding legal obligation to maintain all the male members, their wives
and unmarried daughters in the joint family.
(10) Right to Renounce Interest in Coparcenary Property:
According to Madras High Court a coparcener can renounce his share in the coparcenary
property in favour of all or any of the coparceners. But the Allahabad and Bombay High
Courts have held the view that renunciation must be in favour of all the other coparceners.
Later on the Madras High Court in Sarthamal v. Sivlal15 and others, observed that when
renunciation of one’s share in coparcenary property is made by a coparcener, it would
devolve on all the other coparceners. Where a son is born to him after the act of
renunciation of his share, such son would lose his right to claiming partition in the family.
(11) Right to Survivorship:
The undivided share of a coparcener in coparcenary property after his death devolves by
survivorship upon the surviving coparceners not by succession upon his heirs. The rule of
survivorship has been abolished by section 6(3), Hindu succession act,2005, which says
the interest of Mitakshara coparcener shall be deemed to be the share in the property that
would have been allotted to him if a partition of the the property had taken place

14
AIR1986 All 193
15
AIR 1981 Mad 59
immediately before his death, irrespective of whether he was entitled to claim partition or
not.
According to Mitakshara law every coparcener’s interest in the coparcenary property
arises on his birth, and that right carries with it the right to be maintained out of those
properties suitably to the status of the family so long the family is joint and to have
partition and separate possession of his share, should he make a demand for it. The Hindu
law makes no distinction between a major coparcener and a minor coparcener so far as
their rights to joint properties are concerned.
Coparcenary when comes to end:
Coparcenary ends in two following way-
1) By partition
2) By death of sole surviving coparcener.16
Coparcenary within a coparcenary
It is possible that separate coparceneries may exist within a coparcenary .for instance, a
coparcener consists of A and his three sons B,C,D and two sons of C,CS,CS1 and three
sons of D, DS DS1 ,DS2. Now C and D acquire separate property and die. CS and CS1
inherit coparcenary. DS ,DS1and DS2 inherit D properties and constitute a coparcenary
headed by A two sub coparcenary comes into existence. If sons are born to these sons of
C and D they will have birthright in not merely coparcenary headed by A but also in their
respective coparceneries.
NACHIAPPAH v. COMMR., INCOME TAX17
This question came for consideration before madras High court. the circumstance were,
A and his son B constituted a coparcenary. They partitioned and were assessed separately
to income tax. when son was born to B , he constituted coparcenary in respect of
coparcenary . later on they re-united. when he defaulted income tax in respect of
coparcenary headed by him he took a plea that with his reunion with A , his coparcenery
continued to have separate existence. This matter was considered by SC in Bhagwan v.
Reoti18, where it was observed :
“Hindu law recognises only the entire joint family or one or more branches of that family
as a corporate unit or units and that the property acquired by that unknit in the manner
recognized by law would be considered as joint family property…coparcenary is creature
of Hindu law the also recognize a branch of the family as a subordinate corporate body”.
But if some member of joint family either some members of branch or some members of
different branches, acquired some property jointly .they cannot clothe it with character of

16
Agarwal,R.K, “Hindu law (codified and uncodified), central law agency, twenty-fifth edition, at page no333
17
1966, 2 Mad. 507
18
1962 S.C. 287
joint family property. The rights inter se between such members who acquire property
would be subject to the terms of agreement whereunder it was acquired. 19
NO FEMALE CAN BE COPARCENER
In mitakshara coparcenary, no female except a daughter can be its member, though they
are member of joint family.20 A widow of deceased coparcener can not be treated as
coparcener and cannot be a karta of the family. An alienation made by her would not be
binding on the other members except to the extent of her share .there can be a joint family
with a single male member and his wife and there are widows of deceased coparcener.
For, on the death of a sole surviving coparcener, hindu joint family is not terminated so
long it possible in nature or law to add male member to it.21
MANGALA v. JAYABAI22
A person holding property as property as joint family property in his hands died interstate
after hindu succession act leaving his wife and daughter. It was held that the property in
the hands of widow was not joint property their hands enabling the as manager to deal
with property. the family cannot be at end while there is still potential mother, if mother
in way of nature or law brings a new male member.
DIFFERENCE BETWEEN JOINT HINDU FAMILY AND COPARCENARY
Firstly, while a joint family is unlimited both as to number of persons and remoteness of
their descent from common ancestor, a coparcenary is thrown open to only certain
specified members of the joint family.
Secondly, a coparcenary is limited to male and females of the family who are within the
four degree inclusive of ancestor or head of family,for the time being, while there is no
such limitation in joint family.
Thirdly, a coparcenary comes to end with end of last coparcener or sole surviving
coparcener as he is called whilst a joint family may continue even after his death.
Fourthly, though every coparcenary is a joint family or part of one, the converse is not
true i.e. every joint family cannot be necessarily a coparcenary.
Fifthly, and lastly Hindu joint family includes all the persons lineally descended from a
common ancestor, and includes their wives and unmarried daughters. A Hindu
coparcenary is narrower body and includes persons who acquire by birth an interest in
coparcenary property. These include daughters as well after the amendment of Hindu
succession (amendment)act, 2005.23

19
Supranote3 at page no294
20
Supranote3 atpage no295
21
Misra , Ranganath , and Kumar,Vijendra “Mayne’s treatise on hindu law and usage”, sixteenth edition
,bharat law house, new delhi,2008
22
AIR1994 karn 276
23
Supranote12 at pageno334
MITAKSHARA COPARCENARY NOT A CORPORATION
Mitakshara coparcenary, though sometimes spoken as a corporation, differs in several
aspects from corporation. A coparcenary is a creature of law and can dissolved at will of
member demanding a partition. But a corporation is a creature of statute and is not
dissolved at sweet will of any of member. Besides, coparcenary signifies a natural
relationship constituted by person within the family and a stranger cannot become its
member except by adoption. But a corporation is an artificial body comprising even
strangers and liable to fluctuations for the causes other than those which operate in case
of a Hindu coparcenary.24

24
Supranote12 at page no334