A joint Hindu family is a larger body than a Hindu coparcenary. A joint Hindu family consists of all persons lineally descended from a common ancestor and include their wives and unmarried daughters. A joint Hindu family is one in worship and holds joint assets. After separation of assets, the family ceases to be joint. Mere severance in food and worship is not treated as a separation, as observed in Sri Raghunadha v. Sri Brozo Kishore, 1876 (1) Mad. 69 = 3 IA 154.
Hindu coparcenary is a much narrower body. It consists of propositus and three lineal descendants. Before 2005, it included only those persons like sons, grandsons, and great-grandsons who are the holders of joint property. For example, in case A is holding the property, B is his son, C is his grandson, D is great-grandson, and E is a great-great-grandson. The coparcenary will be formed up to D, i.e., greatgrandsons, and only on the death of A, holder of the property, the right of E would ripen in coparcenary as coparcenary is confined to three lineal descendants. Since grandsons and greatgrandsons become coparceners by birth, they acquired an interest in the property.
Coparcenary property is the one which is inherited by a Hindu from his father, grandfather, or great grandfather. Property inherited from others is held in his rights and cannot be treated as forming part of the coparcenary. The property in coparcenary is held as joint owners.
Coparcener heirs get right by birth. Another method to be a coparcener is by way of adoption. As earlier, a woman could not be a coparcener, but she could still be a joint family member. By substituted section 6 with effect from 9.9.2005 daughters are recognised as coparceners in their rights, by birth in the family like a son. Coparcenary is the creation of law. Only a coparcener has a right to demand partition. Test is if a person can demand a partition, he is a coparcener not otherwise. Great great-grandson cannot demand a partition as he is not a coparcener. In a case out of three male descendants, one or other has died, the last holder, even a fifth descendant, can claim partition. In case they are alive, he is excluded.
Formation of Coparcenary
The basic concept of coparcenary is based upon common ownership by coparceners. When it remains undivided, the share of the coparcener is not certain. Nobody can claim with precision the extent of his right in the undivided property. Coparcener cannot claim any precise share as the interest in coparcenary is fluctuating. It increases and diminishes by death and birth in the family.
In Sunil Kumar & Anr. v. Ram Parkash & Ors., (1988) 2 SCC 77, the Court discussed essential features of coparcenary of birth and sapindaship thus:
“17. Those who are of individualistic attitude and separate ownership may find it hard to understand the significance of a Hindu joint family and joint property. But it is there from the ancient time perhaps, as a social necessity. A Hindu joint family consists of male members descended lineally from a common male ancestor, together with their mothers, wives or widows and unmarried daughters. They are bound together by the fundamental principle of sapindaship or family relationship, which is the essential feature of the institution. The cord that knits the members of the family is not property but the relationship of one another.
18. The coparcenary consists of only those persons who have taken by birth an interest in the property of the holder and who can enforce a partition whenever they like. It is a narrower body than a joint family. It commences with a common ancestor and includes a holder of joint property and only those males in his male line who are not removed from him by more than three degrees. The reason why coparcenership is so limited is to be found in the tenet of the Hindu religion that only male descendants up to three degrees can offer spiritual ministration to an ancestor. Only males can be coparceners. [See: Hindu Law by N.R. Raghavachariar, 8th Edn., p. 202]”
In case coparcenary property comes to the hands of a ‘single person’ temporarily, it would be treated as his property, but once a son is born, coparcenary would revive in terms of the Mitakshara law.
In Sheela Devi v. Lal Chand, (2006) 8 SCC 581, it was observed:
“12. The principle of law applicable in this case is that so long a property remains in the hands of a single person, the same was to be treated as separate property, and thus such a person would be entitled to dispose of the coparcenary property as the same were his separate property, but, if a son is subsequently born to him or adopted by him, the alienation whether it is by way of sale, mortgage or gift, will nevertheless stand, for a son cannot object to alienations so made by his father before he was born or begotten (See C. Krishna Prasad v. Commissioner of Income Tax, (1975) 1 SCC 160). But once a son is born, it becomes a coparcenary property, and he would acquire an interest therein.”
In M. Yogendra & Ors. v. Leelamma N. & Ors., (2009) 15 SCC 184, similar opinion was expressed thus:
“29. It is now well settled in view of several decisions of this Court that the property in the hands of a sole coparcener allotted to him in partition shall be his separate property for the same shall revive only when a son is born to him. It is one thing to say that the property remains a coparcenary property but it is another thing to say that it revives. The distinction between the two is absolutely clear and unambiguous. In the case of former any sale or alienation which has been done by the sole survivor coparcener shall be valid whereas in the case of a coparcener any alienation made by the karta would be valid.”
In Smt. Sitabai & Anr. v. Ramchandra, AIR 1970 Supreme Court 343, it was held:
“3. x x x under the Hindu system of law a joint family may consist of a single male member and widows of deceased male members and that the property of a joint family did not cease to belong to a joint family merely because the family is represented by a single coparcener who possesses rights which an absolute owner of property may possess .”
In Dharma Shamrao Agalawe v. Pandurang Miragu Agalwe & Ors., (1988) 2 SCC 126, it was held that joint family property retains its character even after its passing on to the hands of a sole surviving coparcener. If a son is subsequently born or adopted, the coparcenary will survive, subject to saving the alienations made in the interregnum.
In State Bank of India v. Ghamandi Ram (dead) through Gurbax Rai, (1969) 2 SCC 33, the formation, concept and incidents of the coparcenary were discussed thus:
“5. According to the Mitakshara School of Hindu Law all the property of a Hindu joint family is held in collective ownership by all the coparceners in a quasi-corporate capacity. The textual authority of the Mitakshara lays down in express terms that the joint family property is held in trust for the joint family members then living and thereafter to be born (see Mitakshara, Ch. I, 1-27).
The incidents of co-parcenership under the Mitakshara law are:
first, the lineal male descendants of a person up to the third generation, acquire on birth ownership in the ancestral properties of such person;
secondly, that such descendants can at any time work out their rights by asking for partition;
thirdly, that till partition each member has got ownership extending over the entire property, conjointly with the rest;
fourthly, that as a result of such co-ownership the possession and enjoyment of the properties is common;
fifthly, that no alienation of the property is possible unless it be for necessity, without the concurrence of the coparceners, and
sixthly, that the interest of a deceased member lapses on his death to the survivors. A coparcenary under the Mitakshara School is a creature of law and cannot arise by Act of parties except in so far that on adoption the adopted son becomes a coparcener with his adoptive father as regards the ancestral properties of the latter.
In Sundaranam Maistri v. Harasimbhulu Maistri and Another, ILR 25 Mad 149 at 154.
Mr Justice Bhashyam Ayyangar stated the legal position thus:
“The Mitakshara doctrine of joint family property is founded upon the existence of an undivided family, as a corporate body ( Gan Savant Bal Savant v. Narayan Bhond Savant) [ILR 7 Bom 467] and Mayne’s ‘Hindu Law and Usage’, (6th edition, Paragraph 270) and the possession of property by such corporate body. The first requisite therefore is the family unit; and the possession by it of property is the second requisite. For the present purpose, female members of the family may be left out of consideration and the conception of a Hindu family is a common male ancestor with his lineal descendants in the male line, and so long as that family is in its normal condition viz. the undivided state – it forms a corporate body. Such corporate body, with its heritage, is purely a creature of law and cannot be created by Act of parties, save in so far that, by adoption, a stranger may be affiliated as a member of that corporate family.”
Adverting to the nature of the property owned by such a family the learned Judge proceeded to state:
“As regards the property of such family, the ‘unobstructed heritage’ devolving on such family, with its accretions, is owned by the family, as a corporate body, and one or more branches of that family, each forming a corporate body within a larger corporate body, may possess separate ‘unobstructed heritage’ which, with its accretions, may be exclusively owned by such branch as a corporate body.”
Reference
Vineeta Sharma v. Rakesh Sharma and Others (2020)