What is the distinction between a 'Joint Hindu Family' and a Coparcenary? Give some illustrations in support of your answer.

Question: What is the distinction between a 'Joint Hindu Family' and a Coparcenary? Give some illustrations in support of your answer. [BJS 1986]

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Answer

A joint Hindu family consists of all persons lineally descended from a common ancestor and includes their wives and unmarried daughters. A daughter ceases to be a member of her father's family upon marriage and becomes a member of her husband's family. Possession of joint family property is not a necessary requisite for the constitution of a joint Hindu family.

A Hindu coparcenary is a much narrower body than a joint family. It includes only those persons who acquire by birth an interest in the joint or coparcenary property. These are the sons, grandsons, and great-grandsons of the holder of the joint property for the time being, in other words, the three generations next to the holder of unbroken male descent.

Coparcenary and Joint Hindu family are not synonymous with each other. A joint Hindu family signifies a big institution that consists of a common ancestor, his mother, wife, male descendants, their wives, widows, and unmarried daughters to any degree. It is based on the sapinda relationship of the members. It is a creature of law, not of the act of parties.

On the other hand, a coparcenary is a limited body that includes only those male members who have the right by birth to ancestral property, and therefore, they enjoy the right to demand partition in such property. Thus, the coparcenary includes male descendants up to three generations, i.e. sons, son's son, and son's son's son.

In Surjit Lal v. Commissioner of Income Tax, AIR 1976 S.C. 109, the Supreme Court observed:

"A Hindu coparcenary is a much narrower body than the joint family. It includes only those persons who acquire by birth an interest in the joint or coparcenary property and these are sons, grandsons, and great-grandsons of the holder of the joint property for the time being. Since under the Mitakshara law, the right to joint family property by birth is vested in the male issue only, females who come in only as heirs to obstructed heritage, cannot be coparceners. Outside the limits of the coparcenary, there is a fringe of persons, male and female, who constitute an undivided or joint family. There is no limit to the number of persons who can compose it nor to their remoteness from the common ancestor and to their relationship with one another. The joint Hindu family is thus a larger body consisting of a group of persons who are united by the tie of Sapindaship arising by birth, marriage, or adoption. The fundamental principle of Hindu joint family is Sapindaship."

In joint family sons (vertically) and brothers (laterally) would constitute a coparcenary. In a joint family, their wives may be members of the Joint Hindu Family, but they are not coparceners.

The distinction between Coparcenary and Joint family 

The joint family differs from the coparcenary on the following points :

• Firstly, the joint family is unlimited both as to the number of persons and remoteness of their descent from the common ancestor, whereas the coparcenary is open to only certain members of a joint Hindu family.
• Secondly, a coparcenary is limited to male members of the family who are within the rule of four degrees inclusive of the common ancestor, whereas there is no such limitation in the case of a joint family. After the amendment of Section (6) of the Hindu Succession Act in 2005, his sisters and daughters also coparcener in a joint family.
• Thirdly, since the coparcenary is confined to males only, it comes to an end with the death of the last surviving coparcener, whereas a joint family continues even after his death. It may continue with females only.

Fourthly, though every coparcenary is a joint family or part of one, the converse is not always true, i.e., every joint family is not a coparcenary. The Allahabad High Court in Babulal v. Chandrika, AIR 1977 N.O.C. 229, All upholding the above views observed:

"A Hindu joint family consists of all persons lineally descended from a common ancestor and includes their wives and unmarried daughters but a Hindu coparcenary is the much narrower body and includes only those persons who acquire by birth an interest in the joint or coparcenary property those being the sons, grandsons, and great-grandsons of the holder of the joint property for the time being."

Fifthly, a joint Hindu family is a bigger institution covering in its fold all the male and female members descended from a common ancestor. It includes unmarried daughters also, whereas a coparcenary is a narrower body. It includes only those persons who acquire by birth an interest in the joint coparcenary property, being the sons, grandsons, and great-grandsons of the holder of the joint property for the time being. As was established in the case of Narendra Nath v. W.T. Commr, 1970 AIR 14.

Further, in the case of Gurunaraindas v. Guru Tahaldas, 1952 S.C. 225, it was held that the illegitimate sons of a coparcener are not members of a coparcenary, although they are entitled to maintenance. Since they are not coparceners, they do not enjoy the right to demand partition. But after the death of the father such illegitimate sons can claim partition and will be entitled to an equal share.

In Hardeo Rai v. Shakuntala Devi, AIR 2008 SC 2489, the Court observed that the distinction between Mitakshara coparcenary property and joint family property, a Mitakshara coparcenary carries a definite concept, it is the body of individuals having been created by law, unlike a joint family which can be constituted by agreement of the parties. The Court also held that when the intention is expressed to partition and share, each coparcener becomes clear. Once the share of a coparcener is determined, it ceases to be coparcenary. Parties in such an event would not possess property as "Joint Tenants" but as tenants in common.

Illustration

A inherits certain property from his father X. He has a son, B and a grandson, C, both members of an undivided family. A, B and C are coparceners. A son D is then born to C. D becomes a coparcener by birth with A, B, and C. Subsequently, a son E is born to D. E is not a coparcener, for being fifth in descent from A, he cannot demand a partition of the family property. On A's death, however, B will become the head of the joint family and E will step into the coparcenary as the great-grandson of B, though he is fifth in descent from A, the older. Likewise, on B's death, F (E's son) will step into the coparcenary as the great-grandson of C, the head of the family for the time being, though he is sixth in descent from A, the original holder.

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