Concept of Coparcenary property under Hindu Law

 Q.18 (a) Describe in brief the properties which are "coparcenary property" under the Mitakshara School of Hindu law.

Q. 18  (b) Distinguish between apratibandha daya (unobstructed heritage) and sapratibandha daya (obstructed heritage).

 

Ans. Coparcenary Property [Joint family property]

 

 

According to Hindu Law, the property is divided into two classes, namely,

(i) Joint family property or coparcenary property, and

 (ii) separate property.

The terms 'joint family property and 'coparcenary property' mean exactly same thing. The property which is jointly acquired by the members of a joint family with the aid of ancestral property is also joint family property. However, the property acquired without the aid of ancestral property may or may not be joint family property depending on the facts and circumstances of the case. Joint family or coparcenary property is that in which every coparcener has a joint interest and a joint possession. It devolves by survivorship, not by succession. It is the property in which, the male issues of coparceners acquire an interest by birth.

 

Joint family property or coparcenary property under the Mitakshara School of law may be stated to include the following kinds of property:

 

(i) Ancestral property;

 

(ii) Property acquired with the aid of ancestral or joint family property.

 

(iii) Property acquired by two or more members of a joint family as such property.

 

(iv) Separate property of the coparceners thrown into the common stock.

 

 

1. Ancestral Property. The first species of coparcenary property is ancestral property. Ancestral property means property inherited from ancestor. But the term "ancestor" has been used in a technical sense the term 'ancestor' here does not mean any ancestor male or female, paternal or maternal, near or remote, but only three immediate paternal male ancestors, that is, father, father's father and father's father's father. Therefore, the property inherited from father, father's father, or father's father's father is ancestral property. Property inherited from any person other than the three immediate paternal ancestors is not coparcenary property. Thus if A inherits property from his father's father's father's father, it will not be an ancestral property in the Mitakshara law, but it shall be the separate property of A in which A's sons or daughters will have no right by birth.

 

Property inherited from mother's father is not ancestral property. No body can deny that mother's father is an ancestor. But the property inherited from maternal grand-father is not ancestral property but separate property of the inheritor. This was held by the Privy Council in the case of Muhammad Hussain Khan and others v. Babu Kishva Nandan Sahai, AIR 1937 PC 233.

In the above case, the Privy Council held that the "ancestral property" is confined to property inherited from the three immediate paternal ancestors, and that the property inherited from a maternal grandfather is the absolute property of the inheritor in which his son does not acquire any interest by birth.

 

2. Property jointly acquired by the members of the joint family. The property acquired by two or more members of a coparcenary with the help of coparcenary fund whether in a business, profession or vocation, will be joint family property. The property acquired by the joint labour of the members, even without the aid of joint family funds, is presumed to be joint family property in the absence of any indication of an intention to the contrary.

 

3. Separate property of coparcener thrown into the common stock. A Hindu coparcener may acquire separate property while remaining as a member of the coparcenary. But he may throw his self-acquired property into the joint funds with the intention of abandoning all his separate claims to it. In such a case, it would be a joint property.

 

In Lakkireddi Chinna Venkata Reddy v. Lakkireddi Lakshama, AIR 1963 SC 1601 the Supreme Court observed as follows:

"Property separate or self-acquired of a member of joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the common stock, with the intention of abandoning his separate claim therein, but to establish such abandonment a clear intention to waive separate right must be established. The mere fact that the income of the separate property was utilized out of generosity to support persons whom the holder was not bound to support, or from the failure to maintain separate accounts abondonment cannot be inferred, for an act of generosity or kindness, will not ordinarily be regarded as an admission of legal obligation."

 

4. Gift or will from paternal ancestors.-If a Hindu makes a gift or will of his self-acquired property in favour of his son, son's son, or son's son's son, then the property will be acquired according to the intention of the grantor. In Arunachal Mudaliar v. Muruganatha Mudaliar, AIR 1958 SC 495 the Supreme Court observed...... If there are no clear words in the document of the gift or will describing the kind of interest which the donee or legatee takes under the gift or will in the property given by the father, the question would be one of construction and the Court would have to collect the intention of the donor from the language of the document taken along with the surrounding circumstances in accordance with the well known canons of construction.

 

5. Accretions.-The accretion in the ancestral property will be coparcenary property. Similarly, property acquired or purchased out of the income or with the assistance of the coparcenary property, and sale proceeds of coparcenary property will be coparcenary property.

In Jayaramachandra v. Thulasi Ammal, AIR 1978 Mad. 95 a family consisted of two brothers, Jayaram Chandra and Dandapani and their own families. Both brothers were messing separately but living in the same house.

There was one joint-family property over an acre of wet lands and that property was sold for Rs. 3,000. After a month and half the house in which the two brothers were staying was purchased for Rs. 1,600 in the name of Dandapani.

 

On the death of Dandapani the dispute arose about the partition of the house. It was held that as the acquisition was with the sale proceeds of the joint-family property, the property must belong to the family irrespective of the fact that the sale deed was taken only in the name of Dandapani.  In Kondiram Bhiku v. Krishna Bhiku, AIR 1995 SC 297 it was held properties acquired by brothers after severance in status cannot be clubbed into joint family properties.

 

The distinction between Joint Property and Joint Family Property (Coparcenary Property)

 

The Three terms (1) Joint property'; (ii) Joint family property'; (iii) Joint ancestral family property' are not the same. In all the three there is no doubt a common subject, Le., property, but this is qualified in three different ways.

 

The joint property' of the English law is properly held by two or more persons jointly, its characteristic being survivorship. The joint property' differs from the Joint family property' as shown below:

 

(i) Joint property system is derived from English law while the Joint Hindu family property or coparcenary property system is derived from Hindu Law,

 

(ii)The joint property can be acquired by any two persons without having any blood relations or family relations whereas joint Hindu family property or coparcenary property can be acquired only by birth or by marriage or by adoption.

 

(iii) The joint property can be held by two or more persons and in joint Hindu family several members as per degrees will be considered.

 

(iv) The purpose of joint property is purely commercial and profit motive. But the fundamental principle of the Joint Hindu family is the tie of sapinda ie. purely religious.

 

(v) Joint property is formed by the equal capital and based on the proportion system and not acquired by birth. However, every member of the Joint Hindu Family acquire an interest in it through a right by birth.

 

(vi) There shall be no pre-existence of property in joint property, where as there shall be pre-existence of ancestral property in Joint Hindu Family.

 

(vii) A joint property or joint tenancy is created by a deed or will and not by descent, while the Hindu Joint family is created by birth and not by deed.

 

(viii) Joint property or joint tenancy is absolute and any member can easily transfer his share as he wishes. But, the members of a joint family or coparcenary have the power to alienate their share, but it is subject to with legal, moral and customary obligations.

 

(ix) The joint tenant's interest is fixed and ascertained while the quality of coparcener's interest of the member of joint Hindu family fluctuates with births or deaths in the family.

 

(x) On the death of the last surviving joint tenant the property descends in equal shares to the heirs of all the joint tenants. But, on the death of the last surviving coparcener, the whole property passes to his heirs.

Q. 18  (b) Distinguish between apratibandha daya (unobstructed heritage) and sapratibandha daya (obstructed heritage).

 

Mitakshara Classification of Property

 

The Mitakshara School classifies the property into two classes, namely, (i) obstructed heritage or Sapratibandha Daya, and (ii) Unobstructed heritage or Apratibandha Daya.

 

(i) Obstructed Heritage (Sapratibandha daya)

 

Property inherited by a Hindu from a person other than his father, grand father, or great-grandfather is obstructed heritage. It is called obstructed because the accrual of the rights to it is obstructed by the existence of the owner. The owner holds it as his separate and absolute property. The relations of the owner do not have a vested interest in it by birth. They are entitled to it only on the death of the owner.

The property devolving on parents, brothers, nephews, uncles etc. upto the death of the last owner, is obstructed heritage. Because their relatives. do not have any vested interest by birth their rights come into existence only on the death of the last owner.

For example, A inherited certain property from his brother who died without having any issue. The inherited property in the hands of A will be an obstructed heritage for the sons of A. The sons of A will inherit the property from A only after his death.

 

Obstructed heritage devolves by succession except in the following cases in which it passes by survivorship.

 

(1) Two or more sons, grandsons and great-grand-sons succeeding as heirs to the separate property of their paternal ancestor take as joint tenants with rights of survivorship.

 

(2) Two or more grandsons by a daughter who are living as members of a joint family succeeding as heirs to their maternal grandfather take as joint tenants with rights of survivorship.

(3) Two or more widows succeeding as heirs to their husband take as joint tenants with survivorship rights

(4) Two or more daughters succeeding as heirs to their father take as joint tenants.

(ii) Unobstructed heritage (Apratibandha Daya)

 

The property in which a person acquires an interest by birth is called unobstructed heritage, because it is not obstructed by existence of the owner. Ancestral property is unobstructed heritage. The property inherited by a Hindu from his father, father's father and father's father's father is unobstructed heritage in respect of his own male issues ie. his sons, son's son and son's son's son. Their rights come into existence by birth and the male decendants in whom the property vests, are called coparceners. Thus the ancestral property arrived to last male owners is unobstructed heritage.

 

For example A inherited certain property from his father. Two sons born to A, namely x and y who are coparceners with A. x and y will acquire an interest by birth in the ancestral property possessed by A. Thus, the property in the hands of A is unobstructed heritage, as the existence of the father is no obstruction or impediment to his sons acquiring an interest by birth in the property.

The most important distinction between obstructed and unobstructed heritage is that unobstructed heritage devolves by survivorship whereas obstructed heritage devolves by succession.

The Mitakshara Law recognizes the distinction between obstructed and unobstructed heritage but under Dayabhaga Law every kind of heritage is obstructed and it does not recognise any such distinction because according to Bengal School no person at all acquires any interest by birth in the property of another and the rule of survivorship does not apply to this school.

 

 

 The difference between unobstructed heritage and obstructed heritage may be pointed out as under

 

1. Unobstructed heritage applies to ancestral property and obstructed heritage to separate or self acquired property.

 

2. In Mitakshara law, there is obstructed and unobstructed heritage, but in Dayabhaga, there is only obstructed heritage.

 

3. Right to obstructed heritage accrues by birth of the claimant while right to unobstructed heritage accrues on death of the owner if he dies intestate.

4. Unobstructed heritage devolves by survivorship whereas obstructed heritage devolves by succession. In certain cases, obstructed heritage may also pass by survivorship.

 

5. Distinction between obstructed and unobstructed heritage is recognised only by the Mitakshara school because according to Dayabhaga, school, all heritage is obstructed and no person, not even a son takes an interest by birth in the property of another person. Dayabhaga school does not recognise the principle of survivorship. It recognises only the right of succession and this right naturally accrues, for the first time, upon the death of the owner of the property

18 (c) A governed by mitakshara school inherits certain property from his brother. A has a son B. Is this property sapratibandha daya or apratibandha daya in A's hands. Will it make any difference if A is governed by dayabhaga school?

 

 Under Mitakshara school of Hindu law if a person inherits property from his paternal uncle, brother, nephew, etc. it is known as sapratibandha daya and his son or son's son, or son's son's son or for that matter, any other person does not acquire an interest of birth. Therefore, the said property in the hands of A is sapratibandhadaya (obstructed heritage). Dayabhaga school, as stated earlier, recognizes only sapratibandha daya. Hence, it will not make any difference if A, in the present case, is governed by Dayabhaga school.

Distinction between Coparcenary Property and Separate Property

 

There are following differences between Mitakihara copcary and separate property

 

(1) Partition: A joint family property or coparcenary property is liable to be partitioned whereas there can be no question of partitioning the separate property of a member of the joint Hindu family

 

(2) Devolution: On the death of a coparcener his undivided interest in the joint family property devolves by survivorship and not by succession. The separate property of a coparcener, on the other hand, passes on his death intestate, to his heirs by succession and not by survivorship to the remaining coparceners.

 

(3) Acquisition of interest by birth: In the coparcenary property the sons, son's sons and son's son's sons of a coparcener acquire an interest by birth but in the separate property of a Hindu no other coparcener (even his own son) acquire any interest by birth

 

(4) Nature of interest: All the coparceners have community of interest and unity of possession in the joint family or coparcenary property. On the other hand the separate or self-acquired property of a Hindu belongs to him exclusively even though he may be a member of a joint family.

 

(5) Alienation by gift: A coparcener cannot alienate his undivided interest in the coparcenary property by way of gift without the consent of the other coparceners. But separate property can be gifted away by the owner to any extent and to any person.

 

(6) Alienation by sale or mortgage: No coparcener can alienate his undivided interest in a coparcenary by way of sale or mortgage without the consent of other coparceners. This general rule admits certain exceptions which may be described as under

 

(i)The karta of a Hindu Joint family can alienate by sale or mortgage a portion or even the whole of the joint property for a legal necessity or for the benefit of the estate even without the consent of the other coparceners

(ii) If such karta is the father, he enjoys an additional power of such alienation for the payment of his antecedent debts which were not incurred for illegal or immoral purposes.

 

(7) Alienation by Will: No coparcener could dispose of his property by will, but there was no restriction of this type in case of self acquired property. However, now Section 30 of the Hindu Succession Act, 1956 empowers a coparcener to dispose of his interest in the coparcenary property by will.

 

However, the separate property of his own can be freely alienated by a coparcener by way of sale or mortgage or otherwise.