Kinds and characteristics of the property

Under Mitakshara law property is classified into two categories:

1. Apartibandha Daya / Unobstructed ted Heritage

2. Sapratibandha Daya/ Obstructed Heritage

Unobstructed heritage is the term for the joint family property or ancestral property
acquired by son, son’s son or son’s son’s son by birth. The rule which is governing
its inheritance is the rule of survivorship.

Obstructed heritage is the term for the self acquired property or separate property.
In this type of the heritage a do not get the right by birth but right is acquired on
the death of owner of the property.

So it means there are two types of the property i.e.

Joint family property/ Copacenary property

Separate/ self acquired property

Coparcenary and its elements

Coparcenary means the joint ownership of inherited property. There are three
elements of coparcenary property:

 Exist in Hindu Joint Family

 Consist of male and female descendants
 Extends up to fourth generation including the common ancestor.
Coparcenary continues even at the death of the intermediatory generations.
For e.g. A is a common ancestor descending B, C, D,E. B is the son of A, C is the
son of B, D is the son of C and E is the son of D.
In this illustration the Coparcenary is up to D and E the son of D is not included in
the coparcenary.
In the same case if the B dies the coparcenary starts from the A and ends at D but
doesn’t shifts to E as A is living and the coparcenary is only up to Fourth
generation.
In the similar situation if A is alive B, C, D dies. Then the coparcenary is only of A
again E will not be included in it as it is at 5th generation from the common
ancestor i.e. A
When A dies then the coparcenaries shifts to next level i.e. E
How Coparcenary comes to an end
The coparcenaries come to end by two ways i.e.
i. Partition
ii. On the death of Sole surviving Coparcener.

Similarities between Joint family and Coparcenary

 Both are based on Sapinda relations

 Both arises from a common ancestor and continues even after death of
common ancestor.
 Both are the creation of Hindu law and not of contract.

Dissimilarities between Joint family and coparcenary

Joint Family Coparcenary

1. Unlimited in number & degree of generation. Exists only up to four

generation.
2. Both males and females are the members of All males and only
Join Hindu family. daughters are
. members
Features of Coparcenary:
 A Coparcener has an interest by birth in Hindu joint Family property.
 Shares of the coparceners are flexible and unspecified before partition.
Comm. Of Gift Tax vs. N.S.G.Chelliar AIR 1971 SC 410
All the coparceners are the owners of joint family property and these shares can be
ascertained only after partition.
 Unity of ownership
 Community of interest. When a child born in family he/she became entitled
to have common interest and use of joint Hindu family. No coparcener can
be exclusive owner of common joint family. All coparceners are in
possession of Hindu joint family property.
  Coparcenary is a creation of Hindu law and not creation of an agreement.
Bhagwat Dayal vs Rita Devi AIR 1962 SC 287
Whenever there is a reference of word coparcenary, it means that it is created by
Hindu law not by Contract under Mitakshara law
 Right to Maintenance. The coparceners have the right to maintenance.
Chandra v Kanak AIR 1975 Delhiu 175
It was held that Every Coparcener has a right to receive maintenance and is entitled
to receive marriage expenses from joint family funds.
Sources of joint family property:
1. Ancestral property
Property acquired from father, father’s father or father’s father’s father is ancestral
property.
Dipo vs. Wassam Singh AIR 1983 SC 846
A Hindu male acquiring any property from his father, father’s father or father’s
father’s father is unobstructed heritage and is an ancestral property.
 Property inherited from maternal grand father
Maktul vs. Maan bhari AIR 1958 SC 1268
Property inherited from maternal grandfather is a separate property thus the son
will not have the right in this type of property inherited by his father by the
maternal grandfather.
 Property inherited from any other relation
Om Prakash vs Sarbjeet AIR 1995 HP 92
Property inherited from maternal uncle, paternal uncle, issueless brother or sister
relinquishing her share in favor of her brother is separate property and the son
inheriting person doesn’t have birth right in such property.
2. Other Sources
 Property obtained on partition
After partition the property becomes joint family property on the birth of son.
 Property received in gift
Gift of self acquired property by father to son. And the gift of joint family
property by Karta.
 Property jointly acquired by Coparceners
The property which is jointly acquired by the coparcener is the joint family
property.
 Purna vs. Ramchandas AIR 1992 AP 270
There is always a presumption that if any property is acquired by coparcener
jointly it shall be joint family property and son will have right from the birth in it.
 Property acquired without the aid of ancestral income is not the Joint Hindu
Property
Bhawan Dyal vs Reoti AIR 1962 SC 287
In this case the supreme court of India held that Property acquired without the aid
or help of ancestral nucleus is not joint Hindu property.
 Income by Hereditary profession
Laxmi vs. Ishrov AIR 1977 SC 1694
The income generated from the hereditary profession from joint Hindu family
profession is JHFP
 Property exchanged for the Hindu Joint family property
Gurbachan Singh vs. Puran Singh AIR 1961 SC 1963
Any property exchanged in lieu of joint family property shall become joint family
property.
 Property thrown into common stock & blending of property constitutes the
JFP
When a coparcener expresses his intention to treat his separate property as joint
family property called throwing into common stock. There are two elements in it
that is taken into account i.e. intention of the coparceners and the conduct of the
owner.
Mallellsppa vs. Malappa AIR 1961 SC 1268
When a coparcener clearly expresses his intention to treat his separate property as
JHFP it is throwing into common stock.

When a coparcener voluntarily mixes his property with JFP voluntarily surrenders
his ownership right and mixes property with JFP is known as Blending of Property.
Narayan vs. Chamaraju AIR 1977 SC 1276
When a coparcener physically mixes his separate property with JFP called
Blending of property.
 Gains of learnings
Gains which may be acquired by members of joint family through education or
training. Till 1930 courts made distinction. If any member acquired specialized
training by income of joint family the gains acquired out of training is joint family
property.
Gokul chand vs. Hukum Chand AIR 1921PC35
If any specialized learning had been acquired with the help of joint family, the
income from that training shall be joint family property. If the training is ordinary
then the income will be his separate property.
Then Gains of Learning ACT 1930 was passed. According to that any income
coming from any learning shall be separate property of the member of joint family.
Joint family has no control over separate property of member of