Explain Hindu Coparcenary. Show how it is formed and enumerate the rights of a coparcener.

Question: Explain 'Hindu Coparcenary'. Show how it is formed and enumerate the rights of a coparcener. [BJS 2000]

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Answer

Coparcenary is a narrower body than the joint Hindu family. The people who have a right by birth in the joint family property are called Coparceners. In the ancestral property of a male, his son, grandson and great-grandson have a right by birth.

The text of Yajnavalkya says:

"In land, corrode or wealth received from the grandfather, the ownership of the father and son is equal".

This means that the son can enforce a partition in ancestral property, that is, property descending to the father from his male ancestors. Such property becomes coparcenary property in the hands of the sons.

That is, their sons, grandsons, and great-grandsons can claim a share in it by birth. The share obtained by enforcing a partition would also be coparcenary property. The self­-acquired property of the coparceners may be kept apart by them or maybe blended by them with the coparcenary property.

Formation of coparcenary

The conception of a joint Hindu family constituting a coparcenary is that of a common male ancestor with his lineal descendants in the male line within four degrees counting from, and inclusive of, such ancestor (or three degrees exclusive of the ancestor). No coparcenary can commence without a common male ancestor, though after his death, it may consist of collaterals, such as brothers, uncles, nephews, cousins, etc.

A coparcenary is purely a creature of law; it cannot be created by an act of parties, save so far that by adoption a stranger may be introduced as a member thereof. As was established in Sudarsanam v. Narasimhulu, (1902) ILR 25 Mad 149.

No female can be a coparcener, although a female can be a member of a joint Hindu family. This was the position before the amendment of the Hindu Succession Act in 2005. Under the amendment, the daughters of a coparcener are included as coparceners along with his sons and are recognized as coparceners in their own right.

The genesis of Coparcenary 

A coparcenary is created in the following manner: A Hindu male A. who has inherited no property at all from his father, grandfather, or great grandfather, acquires property by his exertions. A has a son B. B does not take any vested interest in the self-acquired property of A during A's lifetime, but on A's death, he inherits the self-acquired property of A. If B has a son C, C takes a vested interest in the property because of his birth, and the property inherited by B from his father A, becomes ancestral property in his (B's) hands, and B and C are coparceners as regards the property. If B and C continue joint, and a son D is born to C, he enters the coparcenary by the mere fact of his birth. Moreover, if a son E is subsequently born to D, he too becomes a coparcener.

Rights of coparceners

Community of interest and unity of possession - As observed by their Lordships of the Privy Council, in Katama Narhiar v. Rajah of Shivagunga, (1864) 9 MIA 539 'there is a community of interest and unity of possession between all the members of the family'. This has been reiterated by the Supreme Court in numerous decisions.

Share of income - A member of a joint Mitakshara family cannot predicate at any given moment what his share in the joint family property is. His share becomes defined only when a partition takes place as was established in the case of Appovier v. Rama Subba Aiyan, (1866) 11 Moo Ind App 75. The whole income of the joint family property must be brought, according to the theory of an undivided family, to the common chest or purse, and there dealt with according to the modes of enjoyment by the members of an undivided family.

Joint pension and enjoyment - Each coparcener is entitled to joint possession and enjoyment of the family property. If any coparcener is excluded from joint possession or enjoyment, he is entitled to enforce his right by a suit. He is not bound to sue for partition.

Formation of a company - A transaction of forming a company, to hold the property of the family, with the consent of all adult coparceners, can be binding on all coparceners if it can be shown to be to preserve the family property and for the benefit of the family. As was held in Moraka Properties v. Beharilal Morarka, AIR 1978 SC 300: (1978) 1 SCC 109.

Exclusion from the joint family property - Where a coparcener is excluded by other coparceners from the use or enjoyment of the joint property or any portion thereof, and the act of the defendants amounts to an ouster of the plaintiff from his enjoyment of the property, the court may, by an injunction, restrain the defendants from obstructing the plaintiff in the enjoyment of the property. As was held in the case of Anant v. Gopal, (1895) 19 Bom 269; Soshi v. Ganesh, (1902) 29 Cal 500: (1899) 23 Bom 144.

Right to get maintenance - Every coparcener in an undivided family is entitled to be maintained out of the family estate.

Right to enforce partition - Every adult coparcener is entitled to enforce a partition of the coparcenary property.

Alienation of undivided interest - No coparcener can dispose of his undivided interest in coparcenary property by gift. Nor can he alienate such interest even for value, except in Bombay, Madras, and Madhya Pradesh.

Right of survivorship - Where a coparcener dies before the partition of the coparcenary property, his undivided interest in the property devolves, not by succession upon his heirs. but by survivorship upon the surviving coparceners, as was held in Katama Natchiar v Raja of Shivagunga, (1863) 9 Moo Ind App 539.

These were the rights given to the coparceners under Hindu Law.

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