Who are coparceners and what are their rights? State whether a daughter, who wants to remain unmarried, can claim partition in the coparcenary property.

Question: Who are coparceners and what are their rights? State whether a daughter, who wants to remain unmarried, can claim partition in the coparcenary property. [HJS 1998]

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Answer

Within the unit of the joint family system under Hindu Law, there is another unit known as the coparcenary. Coparcenary is a narrower body than the joint Hindu family.

Every coparcenary starts with a common ancestor which after his death includes collaterals also. 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 extension of coparcenary up to three generations carries special significance for Hindus as the male descendants of up to three generations are competent to offer spiritual benefits to their ancestors.

The term coparcener has its origin in the Late Middle English era and, as per Lexico, it means a person who has equal shares with others in the inheritance of an undivided estate. Also, the Collins dictionary defines it as a person who is a person who is coheir and inherits

The word coparcener has its origin in the Late Middle English era and, according to Lexico, coparceners mean a person who has equal shares with others in the inheritance of an undivided estate. The Collins dictionary defines the term as a person who is a coheir and inherits an estate with others. In the context of Hindu laws, a coparcener is a person who has a legal right to his ancestral property by birth.

According to Mitakshara law, the foundation of a coparcenary is first laid on the birth of a son. The son's birth is the starting point of a coparcenary according to that law. Thus, if a Hindu, governed by Mitakshara law, has a son born to him, the father and son at once become coparceners.

According to Dayabhaga law, the foundation of a coparcenary is that which is laid on the death of the father. So long as the father is alive, there is no coparcenary in the strict sense of the word between him and his male issue. It is only on his death, leaving two or more male matters, that a coparcenary is first formed.

Rights of coparcenars

The followings are the rights of coparceners in the coparcenary before the Hindu Succession (Amendment) Act of 2005:

1. Rights of common possession and common enjoyment - There was a unity of possession and the right of common enjoyment in the joint family property available to all the coparceners.

2. The community of interest - No coparcener has got any defined share in the coparcenary property or the income of the property.

3. Right to joint possession - Each coparcener is entitled to joint possession and enjoyment of the family property.

4. Right to enforce partition - Every coparcener including the minor is entitled to demand partition of his share. This right can be claimed against his father or brother or the father and grandfather.

5. Right to restrain unauthorized act - A coparcener may restrain any unauthorized act e.g. erection of a wall or construction of a building etc. of another coparcener in respect of coparcenary property if such act interferes in any way with the joint enjoyment thereof.

6. The right to ask for an account - A coparcener may demand an account of the management of the joint property to have correct knowledge of the actual position of family funds.

7. Right of alienation - A coparcener may alienate his undivided share in the coparcenary property by gift or mortgage or sale with the consent of other coparceners.

8. Right to Set aside the alienation - Every coparcener has the right to set aside alienations made by the father, or the Karta, or any other coparcener beyond his authority.

9. Right to maintenance - A coparcener's wife and children are entitled to be maintained out of coparcenary funds and a member of a joint Hindu family is under a corresponding legal obligation to maintain all the male members, their wives, and unmarried daughters in the joint family.

10. Right to renounce interest in coparcenary property - A coparcener can renounce his share in the coparcenary property in favor of all or any of the coparceners. When renunciation of one's share in coparcenary property is made by a coparcener, it would devolve on all the other coparceners.

11. Right to Survivorship -The undivided share of a coparcener in coparcenary property after his death devolves by survivorship upon the surviving coparceners, not by succession upon his heirs.

The changes which are brought by the Amending Act of 2005 are the following:

• The daughter is coparcener by birth in the same manner as the son.
• She has the same right in the coparcenary as a son.
• Her liabilities in Mitakshara coparcenary are like the liabilities of the "son" under the new Amendment Act, the Mitakshara coparcenary includes the daughter also.
• The daughter and other females are now not only coparceners but they are also entitled to bequeath their share in the coparcenary like their male counterparts for this reason under Section 30 a change has been made.

Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu Family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act, and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and, the daughter is allotted the same share as is allotted to a son.

By the new Act in the list of heirs of Class I the following heirs have been added:

• Son of the pre-deceased daughter of the pre-deceased daughter (Daughter-Daughter's Son);
• Daughter of the pre-deceased daughter of a pre-deceased daughter (Daughter's Daughter's Daughter);
• Daughter of the pre-deceased son of a pre-deceased daughter (Daughter's Son's Daughter);
• The daughter of a pre-deceased daughter of a pre-deceased son shall be added (Son's Daughter's Daughter).

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