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Understanding Coparcenary in Hindu Law - Rights, Reforms, and Key Judgments

Concept of Hindu Joint Family

The Hindu joint family is a traditional social structure with roots in the ancient patriarchal system, where the family head held absolute authority over family members and property. In this system, the family’s welfare was prioritized, and personal interests were often sacrificed for the greater good of the family unit. Hindu law originally treated family property as joint property, with members holding various rights over it. Over time, as individuals were recognised as independent, the concept of separate property and inheritance rules emerged. Despite societal changes, the joint family system and joint family property continue to exist in Hindu society, unique and unlike any other system in the world.

Some key points about the Hindu joint family:-

Hindu joint family is purely a creature of law and can never be formed by the agreement among all members. A stranger cannot be a member of the joint family except through marriage and adoption.
An illegitimate son of a male descendant would also be a member of the father’s joint family.
When a male gets married to non-Hindu under the Special Marriage Act, 1954 then he will cease to be a member of the joint family.
A Hindu joint family is not a juristic personality and cannot hold property separate from its members.
A juristic personality refers to an entity that is recognised by law as having its own legal identity, separate from the individuals who comprise it. Such entities can own property, enter into contracts, sue, or be sued in their own name. Examples include corporations, companies, and legal trusts.
In the context of your statement, a Hindu joint family is not considered a separate legal entity from its members, meaning the family as a whole can

Difference between Hindu joint family and Hindu undivided family:-

There is a presumption that the ‘Hindu joint family’ and ‘Hindu undivided family’ are the same but there are key differences:

Under the Mitakshara school of law, there can be a joint family without joint family property but the concept of a Hindu undivided family without the owing of the property is meaningless because Hindu Undivided is recognised by law and used for taxation functions.
Hindu joint family is central to an understanding of inheritance, devolution of ancestral family, and succession. Revenue laws consider a HUF (Hindu Undivided Family) for income tax purposes.
Hindu joint family cannot be formed without a male and if there is a death of a male member the female could give a male to the family either by giving birth or through adoption. However, this is not the case with HUF (Hindu Undivided Family), even though no male member income tax can be assessed after meeting certain requirements.

Concept of coparcenary under Hindu law

Originally the concept of coparcenary was based on spiritual responsibilities. Coparcenar was specifically someone who could perform funeral rites and offer the ‘funeral cake’ so that salvation (moksha from the cycle of birth and death) could be provided to the father. Presently it is used to ascertain the rights and obligations of the members of Hindu joint family property also called the ancestral property.

Coparcener only has rights in ancestral property and the person is the exclusive owner of his self-acquisition.

There are two schools of thought that regulate and administer Hindu Laws.

The Mitakshara School:

It is a commentary on Yajnavalkya Smriti by Vijananeshwara.
It means ‘brief compendium’ (summarized version of the teachings or content from the Yajnavalkya Smriti).
In this school, the basis of the law of inheritance is the principle of propinquity, that is, nearness in a blood relationship, but the exception to it is female.
In this school, the son, the grandson, and the great-grandson have equal rights in the joint family property, which is equal to the father.
Coparcener can ask for partition from the father in his lifetime and the father is bound to partition the property.
Here the doctrine of survivorship works, and after the death of a coparcener, his share is equally distributed among the remaining coparceners.

2. The Dayabhaga School:

It was written by Jimutavahana in around the later half of the 12th century.
Jimutavahana’s doctrine of inheritance, succession, and joint family system is in controversy with some basic rules of Mitakshara.
The law of succession under the Dayabhaga school of Hindu law is rooted in the principle of religious efficacy or spiritual benefits. This means inheritance is determined based on the extent to which a person can provide spiritual benefits to the deceased, especially through religious rituals like Pindadan (offering of oblations).
It does not recognise the right of the son to ask for a partition during the lifetime of the father.
Here the coparcener dying is useless, his widow has the right to his share and to enforce the partition on her own account.

Some key points to know about coparcenary:-

Seniormost male members with lineal male descendants(Lineal male descendants refer to the direct male descendants in a family who are connected through an unbroken male lineage, starting from an ancestor and continuing through his sons, grandsons, great-grandsons, and so on.) till four generations including him will form a coparcenary.
The fifth generation ( inclusive of him) can be a member of the Hindu joint family but not the coparcener.
F and his lineal male descendants from S1 to S6 (till seven generations) are members of his joint family. But, F, S1, S2 and S3 will be coparceners forming the four generations of the family.
F-S1-S2-S3-S4-S5-S6
A single person cannot form a coparcenary, there is a requirement for at least two people to start and continue a coparcenary.
Coparcenary is limited to three generations, as according to tenets of Hinduism, only descendants up to three generations can offer salvation to the person. It is tied to the religious tenets of Pindadan (offering of oblations) and the belief in spiritual benefits for ancestors, believed that only descendants upto three generation can provide the salvation.

What is the difference between a Hindu joint family and a coparcenary?

Coparcener is the subset of a larger joint family.
A coparcener is an individual who holds inherited rights in the ancestral property while a joint family includes a broader family unit.
Under the classical law, no female can be a member of the coparcenary but she can be a member of the Hindu joint family until she gets married.
Even after marriage, she can be a member of the Hindu joint family but can not be the coparcener of a married family.
Unlike joint families, coparceners are related to each other only by blood or through a valid adoption.
An illegitimate son of a lineal male descendant is a member of the joint family but is not a coparcener.
Members of the coparcener have the right to demand partition under Mitakshara school but members of the joint family cannot do the same.
There is no limitation on the number of joint families or the number of generations involved but a coparcener is limited to four generations of members only.
A joint family can be without any joint property but a Coparcenary cannot be there in the absence of the ancestral property.
A joint family can continue even after the death of the last male member as long as the female is capable of adding a male member to the family either through adoption or birth but the coparcenary requires two male members related by blood.

What are the benefits of being a coparcener?

Right by birth in the property:-
Coparcener gets the rights to ancestral property from the moment he is born, his interest is equal to his father. In fact, his rights date back to the moment of conception (conceived in the womb) and the karta of the joint family cannot alienate (sell, transfer, or otherwise dispose of the joint family property) in a way that denies him from the joint family property. For an adopted child, he is the coparcener from the date of adoption and if the adoption is done by a widow then from the date of her husband’s death.
Rights to ask for Partition:-
A coparcener has the right to ask for partition without the father's consent. He is not permitted to have partition from only a few members of the family, it is against all or neither of them. There cannot be partial partition; the law doesn’t presume anything i.e., if one of the coparcener wants partition of the property, then the whole partition of the property will be done.
Eg:- If there are three brothers and one of them asks for the partition, then the partition will be done among three and not for only the brother who asked for the same.
Partition is an irrevocable act, once there is a division in the family the property cannot be revoked and they can come together only through a reunion.
Eg:- If a family today decided to partition their property, then after the change of heart they cannot come tomorrow and say that they don’t want the partition; once it’s done, it’s done.
Right to Renounce his interest:-
A coparcener cannot transfer the property in favor of a one coparcener but has to renounce the property so that it can be equally divided among the remaining coparceners. Two things need to be kept in mind. Firstly, renunciation should be of the entire undivided interest of the coparcener, it means that coparcener has to renounce his whole property and not the part of it. Secondly, such renunciation should be in the favor of the remaining coparcener, renounced property should be divided among the remaining coparcener.
If a father renounced his interest then it doesn’t mean that the interest of the sons as coparcener will also be ended but it will continue to be there in the property.
Right of Survivorship:-
Whenever a coparcener dies as being a member of the undivided family then his interest in the property gets transferred to the remaining coparcener who are surviving after his death and this enlarging of the share of the property of the surviving coparcener due to their survival is called the doctrine of survivorship.
The classical laws did not give rights to daughters in their ancestral property which is unjust for them. Daughters were not recognised as coparceners from birth under Hindu laws. Therefore an amendment was made in the Hindu Succession (Amendment) Act, 2005

What are the rights of daughters in a coparcenary after the 2005 amendment?

An amendment was done in The Hindu Succession Act,1956 to amend the laws that were contrary to the rights of the women.

Section 23 of the Hindu Succession Act discusses the inheritance of a dwelling house of a house, if the Hindu died without leaving a will and survived both male and female heirs. Then it will depend on the will of the male heir whether the female heir can seek partition or not.
Section 30 of the Hindu Succession Act discusses that any Hindu may dispose of any property which he is capable of doing either by will or other testamentary. After 2005 amendment it can be done by women also which was previously only restricted to women only.
Section 6 of the Hindu Succession Act, earlier only included a son as a coparcener under the Mitakshara school of law but after the amendment, it now includes daughters as coparcener from birth, will have the same rights in the coparcenary property as she would have if she has been a son. This amendment gives daughters both married and unmarried equal rights over the coparcenary as the sons of the family.

The present status is that women of the family can now take the position of the Karta or head of the family breaking all the stereotypes which were there before the amendment that the male of the family only has the right to be Karta and not the female.. They can obtain the property of the father and will not depend on the will of the male coparcener to get the same.

Landmark cases that shaped the Coparcenary laws in India.

Prakash and Ors v. Phulavati and Ors, 2016
Facts - In This case, there was the issue that the daughter wanted her rights in coparcenary property of her father but the father had died before the amendment of the Act.
The Supreme Court held that the amendment is prospective and daughters will be coparceners from the date of passing of the Amendment Act. Following key points of the judgment:-

The daughter must be alive at the time of the amendment to claim a share in the joint family property.
If the daughter dies before the amendment then her legal heirs cannot claim the property.
The daughter’s father should also be alive at the time of the amendment to give the daughter her rights as a coparcener.

Lokmani v. Mhadevamma & Ors., 2016
This case addressed the issue of the retrospectivity of the amendment. The case arose from the dispute over property rights following the amendments of the act. The petitioners contested that they should be recognized as coparceners which was denied prior to the amendment of the Act.
The issue involved in this case:-

What is the validity of the oral and unregistered partition deeds?
What is the right of a daughter as a coparcener whose father died before the amendment?

** Judgment - **The court held that there should be a retrospective application of Section 6 of the Hindu Succession Act. It recognized that the pending petitions concerning the daughter’s right as a coparcener should be resolved according to the amended act. Oral and unregistered deeds are not going to be recognized as valid partitions.

Frequently Asked Questions (FAQs).

Q1. Who is a coparcener under Hindu law?

A coparcener is a member of a Hindu joint family who has an inherited right in the ancestral property by birth. This includes sons, grandsons, and, post-2005, daughters.

Q2. Can daughters demand partition in coparcenary property?

Yes, daughters can demand partition as they are now recognized as coparceners with equal rights by birth, according to the Hindu Succession (Amendment) Act, 2005.

Q3. What is the difference between coparcenary property and self-acquired property?

Coparcenary property is ancestral property shared among coparceners by birth, while self-acquired property is property personally acquired by an individual and not shared by birth.

Q4. Can a coparcener sell their share of coparcenary property?

A coparcener can sell or transfer their undivided interest in coparcenary property but only if it is allowed by the family or with consent from other coparceners, subject to Hindu law limitations.

Q5. What happens to a coparcener’s share if they die without a will?

Under the rule of survivorship, the deceased coparcener's share will pass to the surviving coparceners. However, if they made a will, the share would go to the designated beneficiaries.

Q6. How has the 2005 amendment impacted female coparceners?

The amendment grants daughters the same rights as sons, allowing them to inherit and demand partition in ancestral property.