Coparcenary

Introduction

Coparcenary, in general terms refers to a type of ownership of property where multiple people inherit the same property. Here, each person owns an undivided, transferable interest in the property. The term ‘coparcenary’ has its origin in the English common law. In India, Coparcenary is dealt under the Hindu Succession Act 1956 [1]. Under the Hindu Succession law, it denotes a person who has the capacity to assume a legal right in the ancestral property by birth. It is acquired from the concept and practice of the Hindu Undivided Family.

Hindu Undivided Family

A Hindu Undivided Family (HUF) is an extended family arrangement. It is a group of people where every member is a lineal descendant of a common ancestor. It is an entity consisting of the eldest member of the family or the Karta (head) along with his three generations remaining undivided and all these members are recognized as coparceners. The coparceners acquire a right over the coparcenary property by birth. However, their share in the property keeps changing as new additions in the family emanate. Karta is the head of the family, custodian of finances and manages all of its affairs. The position of Karta is called as Sui generis (Ram Kumar v Commr. Income Tax) [2]. In Pandurang Dahke vs. Pandurang Gorle [3], it was held that an adult female of the Hindu Joint Family can act as a Karta. The concept of HUF has its origins in ancient Hindu jurisprudence and has become an essential feature of Hindu Law.

Mitakshara School of Hindu Law– The Mitakshara School recognizes the right of a son in the ancestral property by birth. The Hindu Succession Act of 1956 is based on this principle. Under this school, only unobstructed or Apratibandhaya property can be inherited. Under this school of law, daughters had no rights in the ancestral property by birth.  

Dayabhaga School of Hindu Law– The Dayabhaga School does not recognize the right of a son in the ancestral property so far as the father is alive. Under this school, both obstructed and unobstructed or Sapratibandhaya and Apratibandhaya property can be inherited. Under this school, females could also inherit the property by virtue of their birth right.

Who is a Coparcener?

A coparcener is the one who equally shares with others the estate in inheritance belonging to a common ancestor. According to the Hindu Succession Act, 1956, a person who is born in a Hindu Undivided Family has a legal right over his ancestral property and hence, he is a coparcener or joint-heir by birth. A coparcener’s interest in the ancestral property keeps fluctuating with the births and deaths in the family.

Under the present laws, the coparcenary rights of the fifth lineal descendant (i.e. the great-great-grandson) will come into effect only when the common ancestor dies.

Hence, a coparcenary consists of a person at the top of the line of descent (also called as ‘propositus’ and his three lineal descendants – who are the son/s, the grandson/s and the great-grandson/s. Basically, a coparcenary has succession of up to four degrees of lineal descent. (Sathyaprema Manjunatha Govda V. The Controller of Estate Duty) [4]

Illustration: Ramesh is the Karta of an HUF and his son Suresh, Suresh’s son Brijesh and Brijesh’s son Mitesh as coparceners. Mitesh’s son Arjun will not have any coparcenary rights in the property till the demise of Ramesh.

All coparceners are the members of a HUF but all members are not coparceners. The following persons cannot be coparceners:

A wife or husband of the coparcener, An insane member of the family Member who renounces his religion, disqualified and absent coparcener, illegitimate sons and daughters, etc. are members but not coparceners in that family.

What is Coparcenary Property?

As per the Hindu Succession Act, the ancestral property of a HUF which is shared by the coparceners is called as Coparcenary Property. In Madanlal v. Yogabai [5] it was held that property acquired by the coparceners with joint efforts would be joint family property. Property of the coparcener thrown into common hotchpots of Family funds will also come under Coparcenary Property. The property received by HUF having ancestral property as gift or under a will also is coparcenary property. Also, Intention of the donor is relevant while considering the character of the gifted property. (M. P. Periakaruppan Chettiar-vs-CIT) [6]

Daughters as Coparceners

A daughter was not considered a coparcener before the amendment of the Hindu Succession Act, 1956. Consequently, they did not have any right to the ancestral property after marriage. Through the Hindu Succession (Amendment) Act, 2005 [7] which came into effect on 9 September 2005, women have been accepted as coparceners. Both, sons and daughters, are now coparceners in the family and share equal rights and liabilities over the property. A daughter continues to remain a coparcener in the property even after her marriage. In case of her demise, her children are entitled to become coparceners in her share. On August 11, 2020, the Supreme Court, in Vineeta Sharma versus Rakesh Sharma and others [8] case, has said that daughters will have coparcenary rights in their father’s property even if he died before the Hindu Succession (Amendment) Act, 2005, came into force that year. However, women who come into the family by way of marriage are still treated as members only.

Rights and duties of Coparceners in HUF

Community of interest and unity of possession- No coparcener enjoys an individual right or special interest or exclusive possession in the ancestral property under any circumstances. There is a shared unity when it comes to their legal rights over a coparcenary property.

Share of Income A coparcener’s share becomes defined only when a partition takes place. The reasoning behind this is that the share keeps fluctuating with each birth and death in the family. According to the jurisprudence behind Hindu Undivided family, the whole income of the joint family property must be first brought to the common purse and then dealt with as per the shares and rights of the coparceners.

Right to joint possession and enjoyment- Each coparcener is entitled to joint possession and enjoyment of the property. If he is prevented by other coparcener from doing so, he is entitled to an injunction order restraining the other coparcener from disturbing his possession and enjoyment of the family property.

Right to demand partition- Every coparcener, irrespective of him being a major or a minor, is entitled to the right to call for partition of his share. However, he cannot demand a definite share as the same is fixed after the partition.

Right of alienation- No coparcener has the right to dispose his undivided interest in coparcenary property by way of gift. Nor can he alienate such interest for value, except in the States of Tamil Nadu, Madhya Pradesh, Maharashtra and Gujarat. However, an unauthorized alienation is not absolutely void. It is voidable at the option of the other coparceners.

Right to impeach unauthorized alienation- Every coparcener has the right to impeach alienations made by the manager or any other coparcener in excess of their powers which includes alienation without any legal necessity or includes illegal transactions without any benefit to the joint family estate.  

Right to restrain improper acts- According to Hindu law, every coparcener has the right to restrain improper acts of other coparceners for example, erecting a building or wall on the coparcenary property if such act causes substantial injury to or interferes with the rights of other coparceners.

Right to maintenance- Wife and children of the coparcener are entitled to be maintained out of the coparcenary funds.  A joint Hindu Family’s members are legally obligated to maintain all the members of that joint Hindu family.

Right to renounce interest- According to the Madras High Court, a coparcener has the right to renounce his interest in the coparcenary property in favor of any or all of the coparceners. Conversely, the Bombay and Allahabad High Court say that renunciation of interest must be in favor of all of the coparceners.

Right to self-acquisition- A coparcener has the right to acquire property of his own and to keep it as his self-acquired property. Other coparceners would have no claim or right on such property.

Conclusion

The concept of coparcenary under Hindu law has originated from ancient Hindu Jurisprudence. The Hindu Succession Act of 1956 deals extensively with the laws of Inheritance and Succession with respect to the concept of Hindu Undivided Family. After the 2005 amendment, the ambit of the act has been rightfully widened to recognize the right of daughters as the coparceners as well.

References

[1] THE HINDU SUCCESSION ACT, 1956

[2] AIR 1953 ALL 150

[3] [1947] AIR Nag 178

[4] (1997) 227 ITR 1 SC

[5] AIR 2003 SC 1880

[6] AIR 1975 SC 431

[7] THE HINDU SUCCESSION (AMENDMENT) ACT, 2005

[8] (2020) 9 SCC 1

Click Here to know more about our Upcoming Courses

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

IF YOU ARE INTERESTED IN PARTICIPATING IN THE SAME, DO LET ME KNOW.

Do follow me on FacebookTwitter  Youtube and Instagram.

The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

If you would also like to contribute to my website, then do share your articles or poems at secondinnings.hr@gmail.com

In the year 2021, we wrote about 1000 Inspirational Women In India, in the year 2022, we would be featuring 5000 Start Up Stories

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.

Create a website or blog at WordPress.com

Up ↑

%d bloggers like this: