October 20, 2021

Concept of Coparcenary under Hindu Law

Family law

Introduction

The term coparcenary was derived from the Hindu Undivided Family (HUF). Coparcenary is the division of property between the co-owners or joint owners who have inheritance to the Hindu joint family. The head of the coparcenary is called as the Karta.

Hindu joint family was defined in a case of Rajgopal v Padmini[1] according to this case if two or more families agree to live together by sharing their food, water resources etc and comes under a roof it will come under Hindu joint family.

In another case of Ram Kumar v Commr. Income Tax[2] it was observed that Hindu joint family is considered as a unit and it is headed by a person called as karta. Karta is a very important person in the Hindu undivided family he is denoted As a manager of the family. The position of karta is known as Sui generis. This means he holds a unique position in the Hindu family property.

There can be more than one person as karta in a Hindu family. He can be any senior member or any person who is apt to manage the whole family. His main duty is to represent his family members or act behalf of the family. The females are dependent on the karta of the joint family. Minors are also dependent on the karta. They all are dependent on karta for the maintenance. If the Karta failed to give maintenance to unmarried daughter in the joint family, he will not be eligible to call as karta. The powers of karta changes at any point of time.

Karta can also be changed in a joint family. Karta has certain rights in the joint family property other than the other members of the family. He has the power to manage the whole property and the family members. He have to contract Dept. He can manage or take loans from other people if there is a need for the family. He has the power to represent the family in the case of legal aspects or for other concerns.

The Karta has the power to represent the whole family. He has the power to enter into contracts for the benefit of family and he should look after the family and does not have any evil intention. He has the power to refer disputes to arbitration if there is any dispute among the family members. He has the power to acknowledge the family members about the situations in the coparcenary. He even has the power to alienate the property of the joint family if there is any need like paying back of debt which was taken for the purpose of joint family

Formation of Coparcenary – Under Mitakshara and Dayabhaga

There are two main schools in the coparcenary. They are Mithakshara and Dayabagga school. In mithakshara school right to ancestral property arises by birth. In mithakshara school the property can be partitioned. The son becomes the co-owner of the property sharing similar rights as to father. The father does not have a right to alienate property. There is survivorship in mithakshara school. In dayabhaga school the right to ancestral property only arises after the death of the last owner. The father has a right to alienate the property in dayabhaga school. There is succession in this school. There are two types of inheritance in mithakshara school. They are apratibandhadaya which means property inherited from direct male ancestors like father, father’s father etc. There is also Sapratibandhadaya which means property inherited from paternal uncle, bother and others etc.

Coparcenary and joint Family

There are some basic differences between joint family and coparcenary. In joint family both males and females are the members of joint family but in coparcenary only male members are the members of coparcenary. There is no limitation of generation with regard to the membership of joint family but in coparcenary up to 4 degree of generation from the senior most male members are members of coparcenary. Coparcenary is a very narrow body, and it includes only those persons who acquire right by birth and in exceptional cases adoptions. Every joint family is not a coparcenary, but every joint family will be a coparcenary. Joint family will be there even after the death of the Karta, but coparcenary comes to an end in the death of the last coparcener. In one of the leading cases of Appaji versus Ramachandra[3] the Bombay High Court held that it is one important exception to the above given case that is the father in the joint family is not agreeing for partition then son cannot impose a partition against the will of the father. This means that junior member cannot execute a partition without his parents’ permission and interest of others.

Rights of coparceners

There are several rights and duties for each coparcener. The property of coparcener is of mutual interest and no one has an exclusive possession right. Everyone will share income and there will be a joint family and is entitled to join possession and enjoyment of family property. If anyone is excluded from doing so, he can enforce his right by going to court of law. Everyone is having a right to maintenance and other necessary expenses in a coparcenary and every coparcener have a right to restrain in property alienation by the katha or any member of the coparcenary. In any case coparceners can partition coparcenary property.

In the case of Commissioner of Gift-tax v. N.S. Getty Chettiar[4] it was given that the individuals in the coparcenary will not have a right to sell any share of the joint family. If they need to sell it they need to first partition the property and then they have to sell this. This is because the property belongs to all people in that coparcenary and share of a coparcener is not specified before partition. In the present coparcenary women can become Kartha and lead and manage the coparceners.

In the case of Pandurang v. Pandurang[5] it was observed that women can also become kartha and lead the family. It gives power to women in the absence of men in the joint family. In the case of Prakash and Others vs. Phulavati[6] there was a classic decision to the women’s property rights. The Supreme Court held that women will not succeed the property from the past coparcenary and there is no retrospective effect for the succession in the coparcenary. This means that only women who were alive after before their father died has the property rights. Later this decision was changed, and new amendment were brought to have a prospective effect to the system and people doesn’t have to look when the amendments came into force.

Coparcener within Coparcenary

There can be coparcenary within coparcenary. In a leading case of Nachiappa vs commissioner, of Income Tax the Madras High Court has Illustrator a beautiful example of coparcenary. During the time of income tax assessment, the income tax authorities assessed son A and father B as separate entities. The court held that there is coparcenary within coparcenary. That is why they were assessed separately. After some time the son united with the father and gave a suit against the assessment of income tax authorities and told that they are the same entity, but the court held that that is not true and they still are separate entities and will be assessed separately. One of the major confusions came in the property of Hindu Undivivded family is the field of taxing.

In the case of Narendra Nath vs commissioner of wealth tax[7] define Hindu undivided family as a male and his wife. It is not defined as two males and two wives. This confusion came because Hindu undivided family share their properties and they paid tax for the share property, so the tax authorities got clarified from the court.

In the case of Commissioner of Income Tax versus Gomedalli Lakshmi Narayan[8] there was a confusion in how Hindu joint family can be assessed for tax. There was a father and his wife and his son. Income tax department had a confusion whether father and son are two separate entities to pay tax. It was held that the son’s right over the property was not absolute because to females in the family had a right of maintenance to the property. So the income of the assasee should be attached as a single Hindu undivided family.

Evolution of Coparcenary

There have been drastic changes happened in the coparcenary system. There has been inclusion of daughter in mithakshara school. According to the 2005 Hindu Succession Amendment Act and a daughter can be a coparcener of a coparcenary. Property right to women is a drastic change in the coparcenary system and the Hindu succussion. There are also constitutional provisions upholding women’s property right like the Article 14,15 and 16 of the Indian Constitution.

Section 6 of the Hindu Succession act was the first step of women’s right. It stated that “on and from the commencement” of the Amendment Act, 2005, the daughter of a coparcener shall have a right on the coparcenary property by birth, just the way that it is with the son. The daughter also shall have the same liabilities as the son does. This concept is termed as “unobstructed heritage”. The daughters now have the right to inherit property. It is like a son that the coparcener should be born like a son in the family.

A daughter can do whatever with her share and the men will not come into managing their property. If a female dies then her children will inherit the property rather than the lineage of the husband. There was a cancellation of succession as per survivorship and there came a succussion of testamentary succession and intestate succession. Hindu Succussion Act became more gender neutral and brought many changes, but it still didn’t give exclusive right to women but later the amendment came. This amendment became a pillar in upholding the constitutional principles and India became a more welfare state.

The Kerala Hindu family abolition Act 1975 abolished the joint family system in the Kerala state with effect from 1976. These all shows how women has grown in the society. The society is now seeing women in a different perspective than they saw in the earlier days. Ownership to property and assets to women make them more powerful and it should be a role model. They excelled in the society because of these new amendments. The law makers were showing their skill in making the laws carefully and with no gender bias. These amendments made the probability of exploitation of women less and if someone exploits them their voice is heard in the society.

The women’s rights should be respected and there should be a culture to respect them as equal human beings. There was lack of awareness among women and in society in these kinds of issues. There are still some missing pieces in the coparcenary system which needs to be addressed and rectified. There is still male dominance in the coparcenary system. However, theoretically men and women are considered as equals but, in some coparcenary, men are treated more than female members.

If a woman dies intestate the property will go to the husband’s heirs first and Hindu women’s property is kept in the husband’s lien. There has been several Acts which repealed the coparcenary in the ancient world. There still needs the education of legal rights to incorporate the full changes which have been brought under the present Hindu law. There should be social awareness to the people and their attitudes needs to be changed for equality.


[1] AIR 1990 Mad 353

[2] AIR 1953 ALL 150

[3] 16 Bom. 29

[4] 1971 AIR 2410, 1972 SCR (1) 736

[5] AIR 1847 Nag. 178

[6] CIVIL APPEAL NO.7217 OF 2013

[7] 1970 AIR 14, 1969 SCR (3) 882

[8] (1935) 37 BOMLR 692, 159 Ind Cas 424

Author Details: Istinaf Abdullah (Alliance School of Law, Bangalore)

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