ALIGARH MUSLIM UNIVERSITY

FACULTY OF LAW, ALIGARH

General Class Test - I

Hindu Law-II

TOPIC – Coparcenary under Hindu Law

SUBMITTED BY:
- HARIM FATMA
- 17BALLB056
- GI6753
- B.A.LL.B (III)

SUBMITTED TO:
Mr. Sadaf Khan

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 CONTENTS

TITLE PAGE NO.

1. Introduction 3

2. Concept of coparcenary in Hindu Law 4

3. Distinction between Joint Hindu Family

and Hindu Coparcenary 5

4. Rights of Coparceners 5

5. Conclusion: Changes brought about by

Hindu Succession Act, 2005 7

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 Introduction
In Hindu social system, Dharmasastras do not separate the spiritual from the secular,
therefore, in the grasthasrama a person is given the training to lead a complete and
meaningful life for the benefit and welfare of those who left and those who are present and
those who will be born. It is a unique phenomenon of Hindu philosophy that the Hindu
family has been thought of as one of the most important institutions because all other
institutions like brahmacharya, vanaprastha and sanyasha depend on it. Hence, the
importance of the family is advocated in the Dharmasastras.1
Coparcenary is “unity of title, possession and interest”. Hindu Coparcenary is a much
narrower body than a Hindu joint family it includes only those persons who acquire by birth
an interest in the coparcenary property, they being the sons, grandsons, and great-grandsons
of the holders of the property for the time being.

Coparcenary: The Black‟s law dictionary gives a more comprehensive explanation of the
term coparcenary. It says, “Such estate arises where several take by descent from same
ancestor as one heir, all coparceners constituting but one heir and having but one estate and
being connected by unity of interest and of title. A species of estate, or tenancy, which exists
where lands of inheritance descend from the ancestor to two or more persons. It arose in
England either by common law or particular custom. By common law, as where a person,
seized in fee- simple or fee-tail, dies, and his next heirs are two or more females, his
daughters, sisters, aunts, cousins, or their representatives; in this case they all inherit, and
these coheirs, are then called “coparceners”, or, for brevity “parceners” only. By particular
custom, as where lands descend, as in gavelkind, to all the mates in equal degree, as sons,
brothers, uncles etc…An estate which several persons hold as one heir, whether male or
female. This estate has the three unities of time, title and possession; but the interests of the
coparceners may be unequal.”2

The concept of coparcenary as understood in the general sense under English law has
different meaning in India or Hindu legal system. In English law, coparcenary is the creation
of act of parties or creation of law. In Hindu law, coparcenary cannot be created by acts of
parties, however, it can be terminated by acts of parties. The coparcenary in Hindu law was

1
Vijender Kumar, “Coparcenary Under Hindu Law: Boundaries Redefined”, Nalsar Law Review Volume 4. P.
27, 2008-2009.
2
Jasleen Kaur Dua, “Coparcenary In India: It‟s Past, Present And Future”,
Https://Www.Lawctopus.Com/Academike/Coparcenary-India-Past-Present-Future/

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limited only to male members who descended from the same male ancestors within three
degrees. These coparceners have important rights as regards to property of the coparcenary
but so long the coparcenary remains intact no member can claim any specific interest in any
part of the property of the coparcenary because of the specific nature of coparcenary in the
Mitakshara School of Hindu law.3

Concept of Coparcenary in Hindu Law

Ancestral property is a species of coparcenary property. As stated above 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 coparcenar with the father as regards the property so
inherited, and the coparcenary consists of the father and the son. However, this does not mean
that coparcenary can consist only of the father and his sons. It is not only the sons but also the
grandsons and great grandsons who acquire an interest by birth in the coparcenary property.
Coparcenary begins with a common male ancestor with his lineal descendants in the male
line within four degrees counting from and inclusive of such ancestor. The Mitakshara
concept of coparcenary is based on the notion of son's birth right in the joint family property.
Though every coparcenary must have a common ancestor to start with, it is not to be
supposed that every extant coparcenary is limited to four degrees from the common ancestor.
When a member of a joint family is removed more than four degrees from the last holder, he
cannot demand a partition, and therefore he is not a coparcenar. On the death, however, of the
last holder, he would become a member of the coparcenary, if he was fifth in descent from
him and would be entitled to a share on partition, unless his father, grandfather and great-
grandfather had all predeceased the last holder. Whenever a break of more than three degrees
occurs between any holder of property and the person who claims to enter the coparcenary
after his death the line ceases in that direction and the survivorship is confined to those
collaterals and descendants who are within the limit of four degrees.4

3
Vijender Kumar, Coparcenary Under Hindu Law : Boundaries Redefined, Nalsar Law Review Volume 4. P.
28, 2008-2009.
4
Bharti Kareer, Coparcenary & Joint Hindu Family,
https://Www.Academia.Edu/31923131/Family_Law_Ii_1._Coparcenary_And_Joint_Hindu_Family.

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 Distinction between Joint Hindu Family and
Hindu Coparcenary
A Hindu coparcenary is distinct from a Hindu undivided family. There are two schools of
Hindu law, the Mitakshara and Dayabhaga. A Hindu coparcenary is a special feature of
Mitakshara law and there is a clear distinction between a joint family and a Hindu
coparcenary. As observed by the Supreme Court in Surjit Lal v. CIT5, a Hindu coparcenary is
a much narrower body than the joint family. The main points of distinction between these are
that joint Hindu family consists of all persons lineally descended from a common ancestor
and includes their wives and unmarried daughters. On the other side, all those members of the
joint family who get an interest by birth in the joint family property are the members of the
coparcenary. The Mitakshara School entitles a son to a right equal to his father in the joint
family property by birth. Under the Hindu law the word "son" has a technical meaning. Son
includes the son, the son's son and the son's son's son. Coparcenary commences with a
common ancestor and includes a holder of joint property and only those males in his line who
are not removed from him by more than three degrees. The daughter was not given a right by
birth in the joint family property. Both the concepts of "Mitakshara Coparcenary Property"
and "Hindu joint family property" are often mistaken for each other. There may be some
degree of overlapping between the two, but yet they are distinct from each other in some
respect.6

Rights of Coparceners
Coparceners have the following rights with respect to the coparcenary property:
1. Co-existing with the ability of the coparceners to perform funeral rites of the father
enabling him to attain spiritual salvation is the right by birth in the coparcenary
property. The moment a coparcener is born, he acquires an interest in the coparcenary
property.
2. The coparceners together possess the title to the coparcenary property. This property
is not owned by joint family or coparcenary as a unity. The ownership vests with the
members of the coparcenary. All coparceners together have a joint or common title or

5
AIR 1976 SC 109.
6
Property Rights Of Hindu Woman Under Uncodified Law,
Https://Shodhganga.Inflibnet.Ac.In/Bitstream/10603/57409/9/09_Chapter%202.Pdf.

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 ownership of this property and till they work out their shares, the extent of their
ownership is not discernible.
3. Each coparcener has a right to possess and enjoys the coparcenary property by virtue
of being a coparcener and therefore, a co-owner of it. The right is of common
enjoyment which means that till a partition by metes and bounds takes place, no
coparcener can claim an enjoyment exclusively of a specific portion of the property.
He can neither predict his exact share nor his specific portion in the property. A
temporary absence of a coparcener does not mean an ouster from possession.
4. Coparceners have a right by birth in the coparcenary property and the moment a son is
born he acquires on interest in the property. The right of the surviving coparceners to
enlarge their shares in the property is due to the application of the doctrine of
survivorship.
5. In a joint family, Karta has the authority to manage the affairs and also the property in
the best interests of the family. He is not accountable to the other members except in
three situations:
(a) He is conducting the family business and the nature of business is such as
necessitates maintenance of proper accounting;
(b) There are charges of fraud or misappropriation of income or conversion;
(c) When a coparcener asks for a partition. In such cases, the coparcener can
ask the Karta to render the account, but, the Karta cannot be asked to give the
past accounts and he would be within his rights to render only the then
existing accounts.
6. A coparcener cannot ordinarily transfer his undivided share except under some
specific situations, but a coparcener is empowered to renounce his undivided share in
the joint family property, in favour of all the remaining coparceners. Two things are
important here; firstly renunciation should be of the entire undivided interest of the
coparcener,7 either he renounces his total interest or none at all; secondly such
renunciation must be in favour of all the remaining coparceners.8
7. A coparcener, who commits an act that is improper, illegal or prejudicial to the
interest of the joint family members or the coparcenary property including common
enjoyment and possession, can be restrained by an injunction from doing such an act.

7
Alluri Ventatapathi V. Dantaluri Venkata Narasimha, AIR 1936 PC 264.
8
Choudhuri Raghubans Narain Singh V. State Of U.P., AIR 1972 SC 2096.

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 Conclusion: Changes brought about by Hindu
Succession Act, 2005
In ancient times, everywhere, property could be owned by the patriarch of the family, who
had an absolute control over persons and property of the family. The patriarch was held to be
responsible for all the matters relating to household, ultimately earning him the title of the
“Grahapati” or master of the household. The Amendment made to the Hindu Succession Act,
1956 in 2005 has attempted to make the daughter of coparcener a „coparcener‟. This
amendment was made under the pretext of allowing for gender friendly succession laws.
However, there are many ambiguities surrounding an understanding the Hindu Succession
(Amendment) Act, 2005. There are several implications of the amendment, the most
significant being a possible reconstitution of the Mitakshara Coparcenary. By introducing the
daughter as a coparcener, the traditional patriarchal nature of the coparcenary has
experienced a dramatic change. There is a confusion surrounding the definition of the
Mitakshara Coparcenary, in the light of the Hindu Succession (Amendment) Act, 2005 - the
position of the “daughter of a coparcener” is one which needs to be examined better. Section
6 of the Hindu Succession (Amendment) Act, 2005 clearly states that the daughter of a
coparcener shall by birth become a coparcener in her own right in the same manner as the
son. It also states that she shall have the same rights in the coparcenary property as she would
have had she been a son, and that she would be subject to the same liabilities. The daughter is
thus, an acceptable member of the Hindu coparcenary, by virtue of the Section 6 of the Hindu
Succession (Amendment) Act, 2005.

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