State fully the remedies available to a creditor against the undivided coparcenary interest of a Hindu.

Question: State fully the remedies available to a creditor against the undivided coparcenary interest of a Hindu. [BJS 1978]

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Answer

Coparcenary is a narrower body under the concept of the Hindu Joint Family and it includes only those persons who have acquired this right by birth. Coparcenary has been derived from the concept of the Hindu Undivided Family. It is the division of joint property among owners who have inherited it. The head of the coparcenary is known as the Karta.

In the coparcenary, only members are the male members of the joint family. Male members can be coparceners up to the four degrees of generation from the senior most male members of the Hindu Joint Family. Coparcenary comes to an end after the death of the last coparcener. In the case of Ram Avadh v. Kedar Nath, AIR 1976 All. 283, it was held that those male persons who are not by birth or by adoption members of the joint family could not, in absence of an enforceable custom, constitute a coparcenary by agreement.

Evolution of Coparcenary 

The concept of coparcenary has undergone a crucial development during recent years, from strict, orthodox, and confined concepts, it has developed itself into an open, justified, and flexible concept.

Section 6 of the Hindu Succession Act, 1956 has intensively affected the entire concept of the coparcenary and the rule of survivorship, but they have not been abolished. They have been modified to the extent of the proviso. Given a large number of female heirs in class I of the Schedule, it is generally not possible to find a family which does not have female relatives of class I, and thus gives room to the rule of survivorship.

The Hindu Succession (Amendment) Act, of 2005 is a landmark, after 50 years, the Act finally addressed some persisting gender inequalities in the Hindu Succession Act, of 1956 which itself was path-breaking. The 2005 Act covers inequalities on several fronts: agricultural land, Mitakshara joint family property, parental dwelling house, and certain widow's rights. The major achievement lies in including all daughters especially married daughters as coparceners in the joint family property.

The Supreme Court in the landmark case of Vineeta Sharma v. Rakesh Sharma,(2020) 9 SCC 1, ruled that women are entitled to coparcenary rights from the moment they are born. The court also held that the death of the father would not affect the coparcenary rights of the appellant.

Rights of Creditor of Undivided Coparcenary Interest

In the case of M.V.S. Manikayala Rao v. M. Narasimhaswami, AIR 1966 SC 470, the Court held

" it is well settled that the purchaser of a coparcener's undivided interest in the joint family property is not entitled to possession of what he has purchased. His only right is to sue for partition of the property and ask for allotment to him of that which on partition might be found to fall to the share of the coparcener whose share he had purchased. His right to possession would date from the period when a specific allotment was made in his favor".

In case the alienation is found to be valid, the alienee is entitled to the interest of the coparcener as it stood at the time of alienation. The subsequent fluctuation of coparcenary interest does not have any effect on this. This rule was upheld by the Bombay High Court 1950 Bombay 332 and Kerala High Court 1966 Ker. 66 but the views of Madras and Andhra Pradesh High Courts 1966 A.P. 333 were different. Thus, the alienee of the undivided interest of a coparcener acquires the following rights -

Right to partition - The alienee has a right to claim partition of his share. Partition may be general, i.e., of the entire joint family property, or specific i.e., of specific property sold by the coparcener. As to the former, the law is well settled and the purchaser has the right to sue for it. As to the latter, opinions vary. The Allahabad and Calcutta High Courts hold the view that specific partition is permissible while the Bombay and Madras High Courts do not hold it permissible. The purchaser of undivided interest is not bound to sue for partition during the lifetime of his vendor coparcener; he may sue for partition even after his death.

Right to mesne profit - The alienee is not entitled to mesne profit from the date of his purchase till the decree in his partition suit. But if the joint family is divided in status though no partition by metes and bounds has taken place, the alienee is entitled to the mesne profits.

Right to joint possession - The purchaser's right to joint possession before he seeks partition, is a controversial question. According to Madras High Court, the alienee does not acquire any right to joint possession both at the private sale and Court sale. Still, according to Calcutta High Court in Deendayal v. Jugdeep, (1877) 4 LA. 247, no such right to joint possession with other coparceners is possible at the Court sale only.

The Bombay High Court in the case of Ishrappa v. Krishna, 1922 Bom. 413, has taken a different view and held that both at private sale and Court sale if the purchaser is a stranger and has not obtained possession, his remedy would be to bring a suit for possession. Where the purchaser has obtained the possession, the non-alienating coparceners are entitled to joint possession with him. It is also open to the coparceners to sue for recovery of possession of the whole property.

As per the case of Ramlal v. Kanhayalal, 1973 M.P. 97, the alienee from a coparcener's interest will take the property subject to all charges, encumbrances, and liabilities affecting the joint family property or the interest of the coparcener

In the case of Jagdish v. Rameshwar, 1960 Pat. 54; 1973 KLJ. 907, an alienee in a general suit of partition cannot claim that specific properties alienated to him should be allotted to his share. But he has an equitable claim and ordinarily the court may decree that very property to his share if it could be done without injustice to other coparceners.

Hence, we can conclude that several remedies are available to a creditor against the undivided coparcenary interest of a Hindu.

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