Concept of Joint Hindu Family' and 'coparcenary

  Q.16. (a) Define Joint Hindu Family' and 'coparcenary' and state the difference between the two, if there is any.

 (b) What is the concept of Mitakashara Coparcenary? Critically examine if the surviving coparcener obtain the share of the deceased coparcener as his legal representative.

 (c) How, in what manner, and to what extent the concept of Mitakashara Coparcenary has been affected/modified by the Hindu Succession (Amendment) Act, 2005.

 

A Joint Hindu Family' consists of all persons who are lineally descended from a common ancestor and includes their wives and unmarried daughters.

On marriage, a daughter ceases to be a member of her father's family and becomes a member of her husband's family.

Ordinarily, an undivided Hindu Family is joint not only in estate but also in food and worship. However, the existence of joint estate is not absolutely necessary to constitute a joint family and it is possible to have a joint Hindu family which does not own any estate. But if joint estate exists and the members of that family become separate in estate, the family ceases to be joint. However, mere separation in food and worship does not operate as separation; Chowdhry Ganesh Dutt v. Jewach, (1904) 31 IA 10.

The joint family system is organised on the principle of subordination and not on that of co ordination or equality of the members with respect to rank and position under it. No two persons can be equal. One of them must be superior and other inferior relatively to each other. It has been observed by the Supreme Court. In Surjitlal Chadha v. Commissioner of Income Tax, AIR 1976 SC 109, that the Joint

Hindu Family is a large body consisting of a group of persons who are united by the tie of sapindaship arising by birth, marriage or adoption. The fundamental principle of the joint Hindu family is the Sapindaship.

A Hindu coparcenary is a much narrower body than the joint family. It includes only those persons who acquire by birth an interest in the joint or coparcenary property. There are the sons, grandsons, and great-grandsons of the holder of the joint property for the time being; in other words, the three generations next to the holder in male descent. The conception of a joint Hindu family constituting a coparcenery 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 (or three degree exclusive of the ancestor). No coparcenery can commence without a common male ancestor, though after his death, it may consist of collaterals, uncles and nephews, cousins, etc. No female can be a member of coparcenary, although she can be a member of a Joint Hindu Family; Commissioner of Income Tax v. Mills, AIR 1966 SC 248. In its true meaning, a Hindu coparcenary is really based on the conception of ancestral property in the hands of the common ancestor. If a Hindu inherits property from his father, it becomes ancestral in his hands as regards his son. In such a case, it is said that the son becomes a coparcener with the father as regards the property so inherited, and the coparcenary consists of the father and the son.

 

Thus, it can be concluded that Joint Hindu Family differs from that of the coparcenary in the following respects

 

1. Firstly, while a joint family is unlimited both as to the number of persons and the remoteness of their descent from the common ancestor, a coparcenary is open to only certain members of the joint family;

 

2. Secondly, a coparcenary is limited among those male members of the family who are within the rule of four degrees, inclusive of the ancestor or the head of the family for the time being;

 

3. Thirdly, a coparcenary being confined to males only, must come to an end with the death of the last coparcener or the sole surviving coparcener as he is called whilst a joint family continues even after his death leaving behind females only;

 

4. Fourthly, though every coparcenary is joint family, the converse is not always true, because every joint family is not a coparcenary; and

 

5. Fifthly, joint Hindu family consists of all persons literally descended from a common ancestor and their wives and unmarried daughters. A coparcenary is, on the other hand much narrower body than the joint family. It includes only those persons who acquire by birth an interest in the joint or coparcenary property, for example sons, grandsons, and great grand sons of the joint property for the time being.

Q.16 (d) Discuss the characteristic features of a Mitakshara Coparcenary. Distinguish between Mitakshara Coparcenary and Dayabhaga Coparcenary.

 

Or

 

Point out the distinction between Mitakshara Coparcenary and Dayabhaga Coparcenary. Is the principle of birth right recognised under the Dayabhaga? Examine.

 

Ans. Attributes of Mitakshara Coparcenary.-A Mitakshara coparcenary is a narrower body than a joint family and consists of the persons who acquire by birth an interest in the joint or coparcenary property. Such persons are sons, son's sons and son's son's sons of the holder of the joint property. On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu Family governed by the Mitakshara Law, the daughter of a coparcener is a coparcener. [Section 6 of the Hindu Succession Act after amendment of 2005]

 

The coparcenary is a creation of law and cannot be created by agreement. The coparcener cannot be added from outside, except in case of adoption, where a stranger is made a coparcener.

 

Before the Hindu Succession (Amendment) Act, 2005 only a male could be a coparcener. So the daughter, wife, mother, daughter-in-law could become coparcener. Though under the Hindu Women's Right to Property Act, 1937, a widow of the deceased coparcener was entitled to succeed her husband's interest but she was not a coparcener.

 

The Hindu Succession (Amendment) Act, 2005 has introduced a revolutionary change in the Mitakshara concept of coparcenary by making - the daughter of a Mitakshara Coparcener a coparcener. Section 6 (1) of the Hindu Succession Act as amended by the Hindu Succession (Amendment).

Act, 2005 is a pertinent provisions. It lays down, "On and from commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu Family governed by the Mitakshara law, the daughter of a coparcener shall:

(a) by birth become a coparcener in her own right in the same manner, as the son;

(b) have the same rights in the coparcenary property as she would have if she had been a son;

(c) be subject to the same liabilities in respect of the said property as that of a son, and any reference to a Hindu Mitakshan Coparcener shall be deemed to include a reference to a daughter of a coparcener:

Provided that nothing in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which has taken place before the 20th day of December 2004."

Mitakshara Coparcenary

 

The following are the essential features of a Mitakshara Coparcenary:

 (i) It is a smaller body within the Joint Hindu Family.

 

(ii) The members of a coparcenary are by birth irrespective of gender, no female members ( except daughter, granddaughter, and great granddaughter) of a joint Hindu family may belong to it.

 

(iii) The membership of a coparcenary is limited to those males who are within the rule of four degrees of sapinda relationship, the ancestor being counted as the first degree. When any person dies, bringing another member remotely connected within the four degrees stipulated, the new person becomes a member of the coparcenary, but if there has been a break of more than three degrees before the last death, the remote person does not acquire coparcenary rights.

 

(iv) A coparcenary being a part of the larger body, called the Hindu Joint Family, necessarily possesses all the attributes of a Joint Hindu Family.

 

(v) A Coparcenary cannot be created by act of parties. It is a pure creation of Hindu Law.

 

(vi) The Mitakshara Coparcenary is unity of juristic existence. The internal constitution of a coparcenary may change on account of births, deaths or adoptions but as regards outsiders it is always deemed to be a separate legal entity.

 

(vii) A coparcenary will not come to an end till the death of the last surviving coparcener and the coparcenary cannot be said to be extinct till then.

 

(viii) The main characteristics of the Mitakshara coparcenary is community of interest and unity of possession between all members of the coparcenary. Each coparcener is entitled to joint possession and enjoyment of the common property.

Formation and incidents or ingredients of Mitakshara Coparcenary

 

Formation of Mitakshara Coparcenary

 

A Mitakshara coparcenary includes only those persons who acquire by birth an interest in the joint or coparcenary property. These are the sons, daughters, grandsons, granddaughters, great grandsons and great grand daughters of the holder of joint property for the time being.

 

For example, A is the holder of the ancestral property. He has a wife X two sons B and C and an unmarried daughter U. B has a wife Y, a son D and C has a wife Z and  son E. D has a son F and a daughter P, E has a wife J and a son G, F has a son H. All are alive. The joint family consists of all of them but the coparcenary does not include H, X,Y,Z and J in it, so long A is alive. H has no interest in the property in the life-time of A. After A's death H also becomes coparcener with other.

 

                                                                      

 

 

 

Incidents of Mitakshara Coparcenary

 

In State Bank of India v. Ghamandi Ram [1969 SC 2330], the Supreme Court has listed the following as the incidents of Mitakshara Coparcenary viz.

 

(i) The lineal male (after 2005 female) descendants of a person up to the third generation acquire on birth ownership in the ancestral properties of such person,

 

(ii) Descendants can, at any time, work out their right by asking for a portion,

 

(iii) Each coparcener has got ownership extending over the entire property

 

jointly with the other coparceners until partition has taken place, (iv) All coparcenary has common ownership and right of possession,

 

(v) The property of the coparceners can be alienated only by the consent of other coparceners

 

(vi) The interest of a deceased member passes, on his death, to the surviving coparceners.

Dayabhaga Coparcenary

 

Under the Dayabhaga school of Hindu Law, a coparcenary may be defined to be a body of persons consisting of such members of a joint Hindu family who inherit the property of a male Hindu as his male issue and the heirs, male or female, of such co-heirs.

 

The main features of Dayabhaga coparcenary are :

 

(i) As long as the father is alive there is no coparcenary between him and his children. Consequently, if there is any ancestral property in the hands of the father, his sons do not acquire any interest in some by birth, they for the first time acquire interest by succession on the death of the father and consequently a son under the Dayabhaga cannot claim partition of ancestral property (or any other kind of property) in the hands of his father.

 

(ii) A coparcenary springs upon the death of the father and may exist between brothers, or between those claiming under different brothers, that is between cousins.

 

(iii) A coparcenary may consist of females and males, but it cannot start with females. If a coparcenary exists between two brothers and one of them dies leaving him surviving his widow, the widow will form a coparcenary under the Dayabhaga law with the brother of her deceased husband, but if a person dies leaving a widow and sons, no coparcenary can commence between the sons and their mother.

 

(iv) A coparcenary once formed will continue to exist till partition.

 

Rights of Coparceners (with regard to the coparcenary property)

 

Mulla has defined Coparceners as "the three generations next to the holder in unbroken male descendents". According to Tomlin's Law Dictionary "Coparceners, otherwise called parceners, are such as have equal portion in the inheritance of an ancestor, or who come in equality to the lands of their ancestors. As per Section 6 (3) explanation 1, of the Hindu Succession Act, 1956, copercener is one who shares (equally) with others in inheritance in the estate of a common ancestor. Coparceners are such persons who inherit property by survivorship and they have unity of possession which may be severed by partition at any time.

The Mitakshara coparcenary is a unique contribution of Hindu Jurisprudence which has no parallel in any ancient or modern system of law. It has the following characteristics:

 

1. Ownership in the whole.-According to the Mitakshara school of Hindu Law the ownership of each coparcener in an undivided family extends over the whole of the joint property, and each part thereof. Each owner is deemed to be owner of the whole, in the same manner as other co owners are also owner of the whole, the ownership of one without excluding the ownership of the others. This view is called as of the doctrine of ownership in the whole, that is, the ownership of the Samudaya the whole body of coparceners. In Katama Natchiar v. Raja of Shivganga, (1863) 9 MIA 593 the Privy Council observed:

 

"There is community of interest and unity of possession between all the members of coparcenary."

 

2. Fluctuating interest.-The interest of a coparcener in the coparcenary property is not fixed. It is always fluctuating. The interest may be enlarged by the death of a coparcener or diminished by the birth of a son. Until a partition takes place no coparcener can predicate of the joint and undivided property that he has a certain definite share. Take for example, a coparcenary consisting of three members, father, son I and son II. Each one is the owner of the whole coparcenary without excluding the ownership of the others. If a partition takes place each will get one-third share. If son II dies and then partition takes place A and son I each will take one-half share.

Similarly if no partition takes place and a third son is born, then on partition A will get one-fourth, Son (1) one-fourth, son (II) one-fourth and son (III) one-fourth.

 

3. Right by birth.-In Mitakshara coparcenary the son, son's son and son's son's son acquire an interest by birth in the coparcenary property so as to enable control and restrain improper dealings with the property by another coparcener. As soon as a son or a daughter [after the Hindu Succession (Amendment) Act, 2005] is born he or she becomes coparcener and gets equal right in the coparcenary property. Thus the coparcenary starts with the birth of a son or daughter [after Hindu Succession (Amendment) Act, 2005]. The superior status of a son is a unique feature of the Mitakshara coparcenary where he is born with the property.

The Mitakshara joint family property (coparcenary property) is distinguishable from the joint property of English law where the male issue does not acquire any interest in it by birth.

 

4. Devolution by Survivorship.-Under the law prior to the enactment of the Hindu Succession (Amendment) Act, 2005 the interest of a coparcener in the Mitakshara coparcenary did not devolve by the rule of succession but by survivorship. So in Mitakshara if a coparcener died out while the other remained, no change was created by the death beyond the disappearance of a co-owner, because the surviving co-owner were from before the owners of the entire property. On the death of a coparcener his interest lapsed to the coparcenary, and it passed by survivorship to the remaining coparceners.

 

The rule of survivorship was, however, affected by two enactments

 

(1) The Hindu Women's Right to Property Act, 1937, and

(2) The Hindu Succession Act, 1956.

 

The Hindu Women's Right to Property Act, 1937, made a serious inroad upon the rule of survivorship. Under this Act the interest of a male coparcener in a Mitakshara coparcenary devolved on his death upon his widow (or widows) simultaneously with the son. This devolution of his interest on the widow abrogated the rule of survivorship.

 

Before the enactment of the Hindu Succession (Amendment) Act, 2005 the Hindu Succession Act, 1956, left little room for the operation of the rule of survivorship. Where a Mitakshara coparcener died leaving his widow, mother, widow of a predeceased son, widow of a predeceased son of a predeceased son, daughter, daughter of a predeceased son, or pre deceased daughter's son, son of a predeceased daughter or daughter of a predeceased son of a predeceased son the Mitakshara coparcenary property devolved by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.

 

The Hindu Succession (Amendment) Act, 2005, which can into force from 9th September, 2005, has made a vital change in the concept of Mitakshara coparcener. Section 6 of the Hindu Succession Act, as it exists after the commencement of this Amendment Act has abolished the principle of survivorship, which was one of the cardinal principle of the Mitakshara coparcenary. Section 6(3) of the Hindu Succession Act, as it exists after this Amendment Act lays down, "where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interests in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place, and

 

(a) the daughter is allotted the same share as is allotted to a son;

 

(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased daughter; and

 

(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.

 

Explanation-For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not."

 

Differences between Mitakshara coparcenary and Dayabhaga coparcenary

 

Mitakshara differs from Dayabhaga in the following points:

 

(i)                 As regards modes of devolution of Property.-The Mitakshara recognized two modes of devolution of property, viz, survivorship and succession. The rule of survivorship applied to the coparcenary property and the rule of succession to separate property. The Hindu Succession (Amendment) Act, 2005 has abolished the rule of survivorship. Dayabhaga recognizes only one mode of devolution of property, that is succession. It applies to ancestral property and self-acquired property, coparcenary.

property and separate property. The distinction between Mitakshara coparcenary and Dayabhaga coparcenary no longer subsists.

 

(ii) As regards acquisition of property.-Mitakshara accepts the doctrine of acqusition of property by birth, whereas Dayabhaga recognizes the doctrine of acquisition of ownership upon the death of last owner.

 

In Mitakshara as soon as a son [after the Hindu succession (Amendment) Act, 2005] a daughter is born, he or she gets equal right with his father in the ancestral and coparcenary property. The coparcenary is created due to the birth of a son or daughter. Under Dayabhaga law a son has got no right by birth in the father's property, whether it is ancestral or self-acquired, the son or daughter gets the right in the property only on the death of the father. Coparcenary is created on father's death and it continues till brothers chose to partition.

 

(iii) As regards concept of caparcenary.-Both schools differ in concept of coparcenership. According to Mitakshara, the ownership of each coparcener in an undivided family property extends over the whole of the joint property, and each part thereof. Each owner is deemed to be the owner of the whole, in the same manner as other co-owners are also the owners of the whole, the ownership of the one without excluding the ownership of the others. This view is known as the doctrine of the ownership in the whole.

 

According to a Dayabhaga each of the undivided coparceners has ownership, not over the entire joint property but only over particular portions thereof. This doctrine is known as the doctrine of ownership in part.

 

(iv) As regards the nature of the share of coparceners.--Under the Mitakshara the share of each co-parcener is not definite, and when the share is determined, that becomes partition. In other words, the partition by metes and bounds is not necessary but the fixation of each coparcener is enough. In Dayabhaga partition by metes and bounds is necessary.