Right of coparcener to challange alienation

CHANAKYA NATIONAL LAW UNIVERSITY

FAMILY LAW PROJECT

TOPIC-RIGHT OF COPARCENER TO CHALLENGE ALLIENATION

Submitted byAKASH RAJ Roll no.-516

Acknowledgement

This is to state that I (AKASH RAJ, ROLL 516) completed my Fourth semester  project wor k of Family law on topic “right of coparcener to challenge alienation” This project would have not come to an end successfully without the help of many distinguished and undistinguished personalities. I sincerely acknowledge the help rendered to me by our faculty of Family law,Mr. shaiwal satyarthi . He has helped me a lot whenever I needed any sort of assistance and guidance related to the topic. I acknowledge the sincere help of our library staffs and our net center in charge, who by rendering me help in locating appropriate resources to collect materials. It is a good platform to recognize the help and guidance furnished to me by many  persons I this regard; I heartily acknowledge their help and support rendered to me, without the help of the above mentioned personalities and many unrecognized  people this project would never been completed.

TABLE OF CONTENT

JOINT HINDU FAMILY

A join Hindu family consists of all persons lineally descended 1 from a common ancestor,including their wives and unmarried daughters 1 An undivided family is ordinarily a joint one not only in estate, but also in food 2 and worship 2. After the separation of estate to the members of the joint family, the family ceases to be a joint one. The Hindu family should at least constitute two members 3. Even if the total number of the male coparceners is temporarily reduced into a single individual, the character of the property remains the same.

coparcenary

A Hindu Coparcenary is a much narrower body than the joint family, which is  purely a creation of law. Th e co nc ep tion of a jo in t Hi nd u fa mily 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. These are sons, grandsons and great grandsons of the holder of the joint  pro pe rt y fo r th e ti me be ing . After th e amend ment of the 20 05 , a da ugh ter has beenincluded 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. All other property is included under separate  property.

1 2

Commissioner of Income-tax v Luxminarayan (1935) 59 Bom 618

 Sri Ragunada v Brozoa Kishor (1876) 49 Mad 98

Coparcenary and separate property

Section 30, Hindu Succession Act entitles a Hindu to make a testamentary disposition of hisinterest in the joint family property. It doesn‟t enable him to alienate his interest by way of gift ir by any other mode, say sale mortgage, lease, exchange etc. These are the inter vivo transactions .They differ from a will. Therefore where Hindu law refuses any Hindu the permission to alienate his interest in the joint family in any of these modes, the restriction cannot be taken as removed by implication from section 30 of the Hindu Succession Act. A male member of the Mitakshara coparcenary was not authorised to make a will of this interest in the joint family property before the commencement of HSA. The reason for the disability was that on the death of a coparcener his interest in the coparcenary property devolved by survivor ship on the surviving coparceners. 3 There was nothing on which the will could operate  .Any provision of this Act or any other law which renders such property incapable of being disposed by will, stands overruled by this section.All those properties of the deceased intestate that is heritable come under the term „property‟ includes under the Act.  It includes his self-earned property as also his share in the Mitakshara coparcenary if he is survived by any of the female heirs or daughter‟s son as mentioned in  Class I of the Schedule. It also includes the property that he might have inherited from his grandfather or father after the Act came into force. All those properties of the deceased intestate that is heritable come under the term „property‟ includes under the Act. It includes his self-earned property as also his share in the Mitakshara coparcenary if he is survived by any of the female heirs or daughter‟s  son as mentioned in Class I of the Schedule. It also includes the property that he might have inherited from his grandfather or father after the 4 Act came into force .

3

 Lakshman Dada Naik v. Ramchandra Dada Naik (1881) 7 IA 181

4

Extract from, Intestate Succession: Devolution Of Property After The Death Of A Hindu Without A Will,

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