Family Law 2

Coparcenary

1

PROJECT REPORT ON COPARCENARY

Submitted To: Dr. Jai Mala

Submitted By: Harkiran Singh Brar 87/10 IVth Semester

Coparcenary

2

ACKNOWLEDGEMENT I owe a great many thanks to a great many people who helped and supported me during the writing of this project. My deepest thanks to my Family Law Lecturer, Dr. Jai Mala, the Guide of the project for guiding me and correcting various documents of mine with attention and care. She has taken pain to go through the project and make necessary corrections as and when needed. I would also thank my Institution and my faculty members without whom this project would have been a distant reality. I also extend my heartfelt thanks to my family and well-wishers.

Coparcenary

3

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

Coparcenary

4

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.2 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.3 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.4 In Narendranath v. Commissioner of Wealth Tax,5 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. In Commissioner of Income Tax v. Gomedalli Lakshminarayan,6 there was a Joint family consisting of a father and his wife and a son and his wife, the son being the present assesse. On the death of father the Question raised is whether the assesse is to be assessed as an individual or as a member of the Joint Hindu family, It was held that the son's right over the 1

Extract From Online Family Law II Notes, Visited on February 23, 2012 at 2

Ibid Ibid 4 Ibid 5 AIR 1965 AP 6 (1935) 37 BOMLR 692 3

Coparcenary

5

property is not absolute because two females in the family has right of maintenance in the property, therefore the income of the assesse should be taxed as the income of a Hindu undivided family.7 In Anant v. Shankar,8 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.9

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”.10 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.11 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.12 All other property is included under separate property.13 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 greatgrandfather had all predeceased the last holder. Whenever a break of more than three degrees 7

Supra Note 1 (1944) 46 BOMLR 1 9 Supra Note 7 10 Definition of “Coparcenary” at Blacks Online Dictionary, Visited on February 23, 2012 at 11 Surjith Lal Chhaabda v. CIT Bombay AIR 1976 SC 109 12 Sundar Lal v. Chhittar Mal (1907) 29 All 1 13 Gautam Jayasurya, “Testamentary Disposition of Coparceners”, Visited on February 23, 2012 at , p.4 8

Coparcenary

6

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.14 In Ceylon- Attorney-General of Ceylon v. A. R. Arunachalam Chettiar,15 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.16 In Gowli Buddanna v. Commissioner of Income-Tax Mysore,17 a family consisting of father, his wife, his two unmarried daughters and his adopted son. After the death of father question arises whether the sole male surviving coparcener of the Hindu joint family, his widowed mother and sisters constitute a Hindu undivided family within the meaning of the Income tax Act? In this case it was held by the court property of a joint family does not cease to belong to the family merely because the family is represented by a single coparcener who possesses rights which an owner of property may possess. The property which yielded the income originally belonged to a Hindu undivided family.18 In Moro Vishwanath v. Ganesh Vitthal,19 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.20

14

Supra Note 9 [1967] 63 ITR 458 (SC) 16 Supra Note 14 17 AIR 1966 SC 1523 18 Supra Note 16 19 AIR 1958 MP 304 20 Supra Note 18 15

Coparcenary

7

GENESIS OF COPARCENARY

21

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.22 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.23

21

Table showing the illustration of a coparcenary in the Hindu family, Visited on February 23, 2012 at 22 Supra Note 13, p.5 23 Ibid

Coparcenary

8

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. 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.24

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.25

DIFFERENCE BETWEEN JOINT HINDU FAMILY AND COPARCENARY 1. In order to constitute a Joint Hindu family the existence of any kind of property is not required whereas in Coparcenary there exists an ancestral property. 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.26

DAYABHAGA SCHOOL ON COPARCENARY According to the Dayabhaga law, the sons do not acquire any interest by birth in ancestral property. Their rights arise for the first time on the father's death. On the death they take such of the property as if left by him, whether separate or ancestral, as heirs and not by survivorship. Since the sons do not take any interest in ancestral property in their father's lifetime, there can be no coparcenary in the strict sense of the word between a father and sons according to the Dayabhaga law. The father can dispose of ancestral property, whether movable or immovable by sale, gift, will or otherwise in the same way as he can dispose of his separate property. Since sons do not acquire any interest by birth in ancestral property, they cannot demand a partition of such property from the father. A coparcenary under the 24

Supra Note 20 Ibid 26 Ibid 25

Coparcenary

9

Dayabhaga law could thus consist of males as well as females. Every coparcener takes a defined share in the property, and he is owner of that share. It does not fluctuate with birth and deaths in family.27

COPARCENER’s RIGHTS       

Right of joint Ownership Right of joint Possession, enjoyment and use of joint family property Right of Survivorship Right of Alienation of undivided interest Right to Challenge an improper Alienation made by the Karta Right of Maintenance Right to Partition28

COPARCENARY WITHIN COPARCENARY It is possible that separate coparcenaries may exist within a coparcenary.

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.29 27

Ibid Vijender Kumar, “Hindu Law of Coparcenary And Its Composition”, Visited on February 23, 2012 at , p.40 29 Ibid 28

Coparcenary

10

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.30 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.31

CHARACTERISTICS OF THE COPARCENARY PROPERTY  



 

Unity of ownership: The ownership of property is vested in the whole body of the coparceners. In determinability of shares: The interest of a coparcener in the property is fluctuating and is capable of being enlarged by deaths in the family and liable to be decreased by births in the family. Community of interest: No coparcener is entitled to any independent and exclusive interest in the coparcenary property nor is he entitled to the exclusive possession of any part of the coparcenary property. His right is that of an undivided interest. Rights by birth: Coparcenary members acquire interest in the property by birth under Mitakshara law while under Dayabhaga; nobody inherits any interest by birth. Devolution of survivorship: One of the interesting features of Mitakshara coparcenary is that on the death of a coparcener, his interest in the property passes on to other coparceners by survivorship (i.e. to the members who are alive). In Dayabhaga, the property devolves on the coparceners on the death of the holder.32

ELEMENTS OF A COPARCENARY PROPERTY

30



Ancestral property: The property which descends from father, grandfather or father’s father’s father.



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.

Sadhu Singh v. Gurudwara Sahib Narike (2006) 8 SCC 75 Supra Note 22, p.8 32 Ibid 31

Coparcenary 

11

Property acquired by all or any of the coparceners with the aid of joint family funds.33

COPARCENER’S POWER OF ALIENATION Alienation is the capacity of a legal person to transfer a property or a property right to be sold from to another. Restraints to alienation can be seen laws across the globe. In India, these restraints are mostly seen in personal law concerning the testamentary succession of property. Hindu Coparceners are a specific group of people, who according to Mitakshara law are not allowed to alienate their joint family property. To unearth the logic behind this legal fiction, it is necessary to trace back the history of Smritikars in Hindu law. Smritikars were those people who documented the customs of different communities and emphasised that codes of morality are not fixed by some divine authority, but must evolve with respect to the changing requirements of generations and communities. They provide the commoners a code of conduct which is considered to be the most authoritative of all. Even though they didn’t hold any punitive powers, their influence depended solely on the voluntary internalisation of such value systems by the groups to which they addressed themselves to, and people's respect for their judgment.34 Smritikars went on to state that the essence of a coparcenary under the Mitakshara School of Hindu Law is community of interest and unity of possession. For this five types of testamentary disposition are widely recognized: Gift, Legacy, Life Estate, Demonstrative Legacy, Will.35

SALE AND MORTAGE According to Bombay, Madras and Madhya Pradesh high courts a coparcener has power to sell, mortgage or otherwise alienate for value his undivided interest without the consent of other coparceners.36 In the rest of Mitakshara jurisdiction such alienations are not permitted and a coparcener has no power to alienate his undivided interest by sale or mortgage, without the consent of other coparceners.37

SOLE SURVIVING COPARCENER A sole surviving coparcener has full right of alienation of the joint family property, but if at the time of alienation another coparcener is in the womb, on his birth, he can challenge such alienation. When the property passes on to the sole surviving coparcener, it assumes the character of separate property as long as he doesn’t have a son. The sole surviving coparcener has the full power of alienating the property the way he likes, by sale, by mortgage or gift since at the time of alienation there is no other member who has joint interest in the family property.38 Such alienation cannot be challenged by a subsequently born or adopted son. But if another member was in the womb of his mother at the time of alienation, the sole surviving 33

Ibid., p.9 Madhu Kishwar, From Manusmriti to Madhusmriti Flagellating a Mythical Enemy, The education council on Indian traditions., Visited on February 23, 2012 at 35 Supra Note 33, p.10 36 Pandu v. Goma AIR 1919 Bom 84 37 Lakshmi v. Kala AIR 1977 All 509 38 Guramma v. Mallapa AIR 1964 SC 510 34

Coparcenary

12

coparcener doesn’t have the power of alienation, ad if alienation has been made, such a member can challenge the alienation or he may ratify it on attaining majority. This power is not fettered by the contingency of an adoption being made by a widow in the family, a contingency which may operate at all.39

THE AMENDMENT OF 2005 IN THE HINDU SUCCESSION ACT The new Section 6 provides for parity of rights in the coparcenary property among male and female members of a joint Hindu family on and from September 9, 2005. The Legislature has now conferred substantive right in favour of the daughters. According to the new Section 6, the daughter of a coparcener becomes a coparcener by birth in her own rights and liabilities in the same manner as the son. The declaration in Section 6 that the daughter of the coparcener shall have same rights and liabilities in the coparcenary property as she would have been a son is unambiguous and unequivocal. Thus, on and from September 9, 2005, the daughter is entitled to a share in the ancestral property and is a coparcener as if she had been a son. The right accrued to a daughter in the property of a joint Hindu family governed by the Mitakshara Law, by virtue of the 2005 Amendment Act, is absolute, except in the circumstances provided in the proviso appended to sub-section (1) of Section 6. The excepted categories to which new Section 6 of the 1956 Act is not applicable are two, namely, (i) where the disposition or alienation including any partition has taken place before December 20, 2004; and (ii) where testamentary disposition of property has been made before December 20, 2004. Sub- section (5) of Section 6 leaves no room for doubt as it provides that this Section shall not apply to the partition which has been affected before December 20, 2004. For the purposes of new Section 6 it is explained that `partition’ means any partition made by execution of a deed of partition duly registered under the Registration Act 1908 or partition affected by a decree of a court.40

39

Supra Note 35, p.16 The SC Judgement dated 12-10-2012 on The Amendment of 2005 in The Hindu Succession Act, 1956, Visited on February 23, 2012 at 40

Coparcenary

13

BIBLIOGRAPHY BOOKS 

SHARMA, B.K. Hindu Law, 3rd Edition. Allahabad: Central Law Publications, 2011.

E-ARTICLES     

The SC Judgement dated 12-10-2012 on The Amendment of 2005 in The Hindu Succession Act, 1956 at Pramod Singh. “Women's Right In Coparcenary Property” at < http://leguminfo.com/node/71> Online Family Law II Notes at Gautam Jayasurya, “Testamentary Disposition of Coparceners” at Vijender Kumar, “Hindu Law of Coparcenary And Its Composition” at