Hello, dear reader in this post we are going to discuss about Joint Hindu family and coparcenary. In the last post, we already discussed about the Source Of Hindu Law.
So lets start our discussion.
The Joint Hindu Family is an institution sui generis. It is mostly governed by the Hindu religion and customary practices. It consists of Male, his wife, unmarried daughter and his male descendants, their wives and unmarried daughters.
Within the Joint Family, there is coparcenary. In other words, coparcenary is narrow body than the Joint Family. The coparceners are the owners of the Joint Family property. It includes only those, who acquire by birth an interest in the joint or, as it is called, coparcenary property, these being the son, grandson and great-grandson of the holder of the property for the time being.
In other words, only male member can be the coparcener. A woman cannot be a corporation since she has no right to enforce the partition. The female members may be allotted shares, if partition takes place, but they cannot ask for partition.
The head of the Joint Family is called “Karta” Every coparcener has a right of maintenance out of the joint family property. The coparcener is bound by the alienation made by the Karta, and has a right to question/challenge the alienation made by the Karta.
Formation of Hindu Coparcenary
Coparceners are such persons who jointly inherit property, whereof they have unity of possession which, however, may be served at any time by partition. The co-hairs and heirs also are called coparcener as long as unity of possession continues. Mulla defines coparceners as the three generations next to the holder in unbroken male descent.
Hindu Succession (Amendment) Act, 2005 has introduced changes of far-reaching importance in the concept of the Mitakshara coparcenary. The Amending Act has substituted Section 6 of the Hindu Succession (Amendment) Act, 2005. The substituted Sub-section (1) of Section 6 now runs as below
On and from the commencement of 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 had if she had been a son.
(c) Be subject to the same availability in respect of the said coparcenary property as that of a son.
And any reference to the Hindu Mitakshara coparcenary shall be deemed to include a reference to a daughter of a coparcener.
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Right of coparcener
The coparcener, acquires interest by the birth in the joint family property. But it is not fixed, but it subject to change with the birth of another coparcener.
Example- A coparcenary consists of a father ‘F’ and his son ‘A’. If partition takes place “A’ gets 1/2 share and ‘F’ gets 1/2 share. Suppose, ‘B’ (another son) is born before the partition, the share of the each coparcener comes down to 1/3.
According to Mitakshara Joint Family, every coparcener gets right by birth in the Joint Family Property. He can claim partition. On his death, his interest devolves upon the other coparceners. An illegitimate son cannot be a coparcener, but it is entitled to maintenance out of Joint Family funds.
Before the Hindu Succession (Amendment) Act, 2005 Mitakshara coparcenary consisted of only male members and females were not members of it. Hindu Succession (Amendment) Act, 2005 has substituted Section 6 of the Hindu Succession Act and has made the daughter of the Mitakshara coparcener, a coparcener in his own right in the same manner as the son.
Now, she has the same rights in the Mitakshara coparcenary property as she would have had if she had been a son and is subject to the same liabilities in respect of the said coparcenary property as that of the son.
Difference between Joint Family and Coparcenary
Joint Hindu Family differs from that of the coparcenary in the following respects.
(1) While a Joint Hindu Family is unlimited both as to the number of persons and the remoteness of their descent from the common ancestor. A coparcenary is open only to certain members of the joint family. It is limited to 4 degrees only.
(2) The joint Hindu family does not show any difference between males and females, whereas coparcenary is limited only to males, that too for 4 degrees, inclusive of the ancestor or the head of the family for the time being.
(3) A joint Hindu Family shall constitute even after the death of the male Karta and consisting only females. But, a coparcenary may come to an end with the death of the last coparcener or the sole surviving coparcener.
(4) Every Joint Family is not coparcenary but every coparcenary is a Joint Hindu Family.
(5) A coparcenary is, on the other hand, a much narrow body and includes only those persons who acquire by birth or in the exceptional case of adoption of a son, an interest in the joint or personal property.
For example- Sons, grandsons and great-grandsons of the joint property for the time being in force.
Right of coparcener in coparcenary property
Joint family property is a very important aspect of the law of Joint Hindu Family, which is like a big reservoir into which property flows in form various sources to meet the needs of the members of joint family. It is also known as “coparcenary property or unobstructed Heritage “Aprathibanda Daya”.
The word Daya or Heritage means “the property which comes under the ownership of another by virtue of the letter’s relationship to the owner”. Aprathibanda Daya or unobstructed Heritage is a “property in which a person acquires right by birth”. It is called unobstructed because the accrual of the right to it is not unobstructed by the existence of the owner.
Thus, property inherited by a Hindu from his father, father’s father or father’s father’s father but not through any of his other relations, is unobstructed Heritage as regards his own male issue. In coparcenary property, all the coparcener has common interest and the right of possession.
The joint family property consists of the property inherited by a male Hindu from his male ancestor not exceeding three degree. i.e. his father, father’s father and father’s father’s father. Similarly his son, son’s son and son’s son’s son and separate property of the coparcener thrown into common stock.
Share obtained by partition also comes under the Joint Family Property. Son, son’s son and son’s son’s son acquire an interest by birth in the joint family property.
Under the Mitakshara Law as it existed before the Hindu Succession (Amendment) Act, 2005 joint family or ancestral property, in which the male issues, i.e. sons, grandson and great-grandson acquire by the birth, was called unobstructed Heritage.
Now after commencement of the Hindu Succession Amendment Act, 2005 a daughter of the Mitakshara coparcener also acquire and interest by birth in the Mitakshara coparcenary property.
‘A’ inherits property from his father. ‘A’ son is afterword burn to him. The son becomes a coparcener with his father. ‘A’ by birth is entitled to an undivided half share in the property. The property in the hands of ‘A’ is unobstructed Heritage for the existence of the father is no obstruction or impediment or bar to the son acquiring an interest in the property. Similar would be the position of a daughter of ‘A’
Thus, the Joint Family Property consists of-
(1) Ancestral property.
(2) Property jointly acquired by the member of a joint family.
(3) Separate property of a member ‘thrown into the common stock’ within the intention of abandoning all separate claims on it.
(4) Property acquired by all or any of the coparcener with the aid of the joint family fund.
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