Essential characteristics of coparcenary, were analysed in Controller of Estate Duty, Madras v. Alladi Kuppuswamy, (1977) 3 SCC 385, thus:
“8. . “Thus analysing the ratio of the aforesaid case regarding the incidents of a Hindu coparcenary it would appear that a Hindu coparcenary has six essential characteristics, namely,
(1) that the lineal male descendants up to the third generation acquire an independent right of ownership by birth and not as representing their ancestors;
(2) that the members of the coparcenary have the right to work out their rights by demanding partition;
(3) that until partition, each member has got ownership extending over the entire property conjointly with the rest and so long as no partition takes place, it is difficult for any coparcener to predicate the share which he might receive;
(4) that as a result of such co-ownership the possession and enjoyment of the property is common;
(5) that there can be no alienation of the property without the concurrence of the other coparceners unless it be for legal necessity; and
(6) that the interest of a deceased member lapses on his death and merges in the coparcenary property.
Applying these tests to the interest of a Hindu widow who has been introduced into a coparcenary by virtue of the Act of 1937, we find that, excepting Condition (1), all other conditions are fully satisfied in case of a Hindu widow succeeding to the interest of her husband in a Hindu coparcenary.
In other words, after her husband’s death the Hindu widow under the Act of 1937 has got the right to demand partition, she cannot predicate the exact share which she might receive until partition is made, her dominion extends to the entire property conjointly with the other members of the coparcenary, her possession and enjoyment is common, the property cannot be alienated without concurrence of all the members of the family, except for legal necessity, and like other coparceners she has a fluctuating interest in the property which may be increased or decreased by deaths or additions in the family.
It is manifest that she cannot fulfil the first condition, because she enters the coparcenary long after she is born and after she is married to her husband and acquires his interest on his death. Thus, short of the first condition, she possesses all the necessary indicia of a coparcenary interest. The fact that before the Act of 1956, she had the characteristic of a widow-estate in her interest in the property does not detract any the less from this position. It must follow as a logical corollary that though a Hindu widow cannot be a coparcener, she has coparcenary interest and she is also a member of the coparcenary by virtue of the rights conferred on her under the Act of 1937.”
In Controller of Estate Duty (supra), it has also been laid down that if a widow does not exercise her right of partition, there is no severance of the Hindu coparcenary and on her death, the interest of the widow merges in the coparcenary property or lapses to the other coparceners. It was observed that the male issue of coparcener acquires an interest in the coparcenary by birth, not as representing his father.
The Court in Controller of Estate Duty (supra), placed reliance on Satrughan Isser v. Sabujpari, & Ors., AIR 1967 Supreme Court 272.
In case the right to partition by a widow has not been exercised, there is no severance of Hindu coparcenary, and on death of coparcener, there is no dissolution of coparcenary. In Satrughan Isser v. Sabujpari, & Ors., AIR 1967 Supreme Court 272., it was held:
“7. By the Act certain antithetical concepts are sought to be reconciled. A widow of a coparcener is invested by the Act with the same interest which her husband had at the time of his death in the property of the coparcenary. She is thereby introduced into the coparcenary, and between the surviving coparceners of her husband and the widow so introduced, there arises community of interest and unity of possession. But the widow does not on that account become a coparcener: though invested with the same interest which her husband had in the property she does not acquire the right which her husband could have exercised over the interest of the other coparceners.
Because of statutory substitution of her interest in the coparcenary property in place of her husband, the right which the other coparceners had under the Hindu law of the Mitakshara school of taking that interest by the rule of survivorship remains suspended so long as that estate enures. But on the death of a coparcener there is no dissolution of the coparcenary so as to carve out a defined interest in favour of the widow in the coparcenary property: Lakshmi Perumallu v. Krishnavanamma. The interest acquired by her under Section 3(2) is subject to the restrictions on alienation which are inherent in her estate. She has still power to make her interest definite by making a demand for partition, is a male owner may.
If the widow after being introduced into family to which her husband belonged does not seek partition, on the termination of her estate her interest will merge into the coparcenary property. But if she claims partition, she is severed from the other members and her interest becomes a defined interest in the coparcenary property, and the right of the other coparceners to take that interest by survivorship will stand extinguished. If she dies after partition or her estate is otherwise determined, the interest in coparcenary property which has vested in her will devolve upon the heirs of her husband.
It is true that a widow obtaining an interest in coparcenary property by Section 3(2) does not inherit that interest but once her interest has ceased to have the character of undivided interest in the property, it will upon termination of her estate devolve upon her husband’s heirs. To assume as has been done in some decided cases that the right of the coparceners to take her interest on determination of the widow’s interest survives even after the interest has become definite, because of a claim for partition, is to denude the right to claim partition of all reality.”
Reference
Vineeta Sharma v. Rakesh Sharma (2020)