FSSS

(Fourth degree) Great Grandson

FSSSS Great-great Grandson

(Fifth degree) of any of the
disappearance
It must be noted that during the lifetime of acommon male ancestor, the
generation.
intermediary generation does not extend the coparcenary beyond fourth
will :of A, B, C, D
consist
A'
In the given illustration, coparcenary coparcenary will
A then
& E. However, if B&C dies before A then co
Now, if E also dies before
consist of A, D &
E.
B² death ofE
only of A& D. With the
parcenary will
consist
also
ES2 to become coparceners
ES1 &
before A chances of consist of D &
coparcenary will
C dies, then
ends. Now if A then coparcenary
remaining alive D dies
DS1 & DS2 but if A become
A & chances of DS1& DSZ to
of
D+ will consist only situation if Adie as
the bet
end. In such a
coparcenes willalso joint
coparcenary will
come to an end &
coparcener then this
DS, DS, ES, ES, by succession.
family property will pass
property
not acquire an interest by birth in the coparcenary
According to Dayabhaga law, the
sons do father,
father that the sons take the property left by the
on the death of the
held by the father. It is only
succession. Eg.
whether ancestral or separate, by and
do not form coparcenary
B and two grandsons Cand D from B. C andD
A dies leaving a son while Cand D do not take
any interest therein
or ancestral property left by A
separate
Bonly succeeds to the coparcenary.
B's death, C and D will succeed together and form a
by birth. On
under Mitakshara l a w u
Nature and features of coparcenary
community of interest and unity
of ownership
under the Mitakshara is
The essence of coparcenary Ghamand
coparcenary. The Supreme Court in State Bank ofIndia v.
between allthe members of the by al
observed that coparcenary property is held in collective ownership
Ram, AIR 1969 SC 1330, operation of law and na
quasicorporate capacity. The Mitakshara coparcenary is created by
coparceners in
son (or daughter) is taken in adoption, the assimilation is by the act C
by agreement of parties. But where
below :
parties. The Supreme Court further laid down special features of Mitakshara coparcenary, given
ancestor who acquire an interest
1. The male descendant up tofour generations from common
generation).
birth, constitute coparcenary [common male ancestor is counted as first

124 Samarth Agrawal Books

 2. Coparceners have a Hindu Laws
is born in the right by birth in the
and use of all
family, he
acquires an interestproperty of joint Hindu family. The moment the person
properties. in the
property ?and has aright of common enjoyment
3. These members
of the
4. So long as there coparcenary have right to
is no
partition, demand partition.
along with others. each of the
coparceners has control over the entire
Their property
5
ownershipand right of
joint possession
6. There cannot be are common, on account of
any transfer of co-ownership.
proved and all other coparcenary
members of coparcenary property unless the necessity of such transfer is
7 On the death of any give their consent to this effect.
of the
coparceners, his share devolves on other coparceners by rule of
survivorship and not by succession.
Now, the propositions (1) and (6)
stated above stand modified by Hindu Succession
Act.2005. Atemale may also be a (Amendment)
coparcener in Mitakshara coparcenary and rule of
abolished. suvivorship has beel

Extinction of Coparcenary

By partition
Extinction of Coparcenary
By the death of the last surviving coparcener
A Hindu coparcenary comes to an end in two ways :

1. By partition, or
2. By the death of the last surviving coparcener.
joint family which may continue even
It is to be noted that end of coparcenary does not put an end to
death of coparceners. There can be no coparcenary without joint Hindu family but viceversa is not
after the
coparcenary is a narrower body.
true. Hindu joint family is a larger institution while

Rights of coparceners
including the common ancestor in
are the four generations
coparceners
As already stated above, Act, 2005, even
commencement of Hindu Succession (Amendment)
unbroken male descent and
after the
her own right in the same manner as the son. The
coparcener in
coparcener may become a
adaughter of a
coparcener in the coparcenary :
following are the rights of a 125
Samarth Agrawal Books
 Maiows Guide to JudicialServioes
1, Mains Examinations:
Volume lll
Right of common possession and
unity of possession common cnjoyment: There is community of interest and
between all the Coparceners.
coparcenary property nor is any entitled No one is entitled to any special interest in
2. one to exclusive possession of any part of it.
Community of interest and right to savings : No coparcener has got a defined share in
Parcenary property or incomethereof and as long as family in undivided, he cannot predicate
t e nas certain share in the family property. The entire income must be brought to the common
Purse and used by all members of undivided family.
3.
Kight to joint possession : Each coparcener is entitled to joint possession and enjoyment of
the family property and ifhe is prevented by other coparcener from doing so, he is entitled to an
injunction restraining that other coparcener from disturbing his possession and enjoyment [Anant
v. Gopal, 11 Bom 269).
4. Right to enforce partition :Every coparcener, whether major or minor, is entitled to callfor
the partition of his share against his father, brother or grandfather irrespective of whether the
other coparceners agree to become divided or not.
5. Right to restrain unauthorized act : A coparcener may restrain any unauthorized act (for
example, erection of wallor building etc.) of other coparceners in respect of coparcenary property
if suchact interferes in joint enjoyment and causes substantial injury to the property or rights of
other coparceners.
6. Right to ask for accounts :A coparcener may demand an account of the management of joint
property so that he may know the actual state of family funds when the coparcener is suing for
partition. If such demand is met by refusal, he is entitled to restrain the other coparceners for
excluding him from management thereof.
7. Right of alienation : Acoparcener may alienate his undivided interest in the coparcenary by
gift, sale or mortgage with the consent of other coparceners. However, in Bombay, Madras and
Madhya Pradesh, no such consent is required.
8. Right to set aside alienations: Every coparcener has aright to set aside alienation made bythe
father, manager or any other coparcener beyond his authority which includes alienation without
legal necessity or illegal transactions without any benefit to estate.
9. Right to maintenance : A coparcener's wife and children are entitled to be maintained out of
the coparcenary funds and the members of a joint Hindu family are under a legal obligation to
maintain all the members of the joint Hindu family.
10. Right to renounce his interest : Acoparcener according to Madras High
Court, can renounce
his interest in the coparcenary property in favour of all or any of the
coparceners. Howeve, the
Bombay and Allahabad High Court are of the view that renunciation must be in favour
of all the
coparceners.

126
Samarth Agrawal Books
 Thus,, under Hindu Laes
and that right
Mitakshara law, the right of
carries with it coparcener to share in the
right to be
Unity of ownership maintained out of those coparcenany property arises by birth
cproperties and to have partition of his
share.
Every coparcenary 1s the owner of
be considered as owner. the joint
family
property. It isa an
The
coparceners in particular property.The entire coparcenary as asingle unit will
undivided
coparcenary cannot know their share until there is a
partition in a
ofa coparcener issa
a interest until partition iis claimed.
fluctuating interest ie. at one The undivided coparcenary
will get on partition
cannot be predicted particular point of time what share a particular interest
partition takes place. The before rather the actual share coparcener
quantum of share may will be known when the actual
change with the change of the family circumstances.
(Distinction between
Mitakshara and Dayabhaga with regard
Ajoint hindu family to law of copracenary)
governed by Dayabhaga law differs
the following respects - from the one governed by Mitakshara law in
1. Interest by birth :Under the
birth while under Dayabhaga law, sons do not require an interest in the property by
Milakshara law, they do.
2
Detined shares : Under Mitakshara. all the
members hold the property jointly and no shares
defined. Under Dayabhaga, each heir are
holds determined share.
3. Unity of ownership:There is unity of
ownership under Mitakshara law while there is only unity
of possession under Dayabhaga.
4. Father's right of disposition : Afather in a
Mitakshara joint family cannot dispose of the
ancestral property without the consent of coparceners, but in Dayabbaga, the father can do so.
5. Right to accounts: The members oftheDayabhaga joint family can call the managing members
for an account of his management of the family which a coparcener of Mitaksbara joint family
cannot do.

6. Right to partition :Under Dayabhaza law, the son do not posess any right to demand partition
even of ancestral estate during the lifetime of father whereas under Mitakshaa, they have this
right.
7. Right of purchaser at court sale :In Dayabhag4, a purchase at acourt sale of share of a
coparcener is entitled to be put into joint poSsession with the other coparceners to the extent of
the share purchased. In Mitakshar, he does not acquire any such right.

Samarth Agrawal Books 127

 ACompendios Guide to Judicial Servias Mains Examinations : Volume III
Distinction between Hindu joint family and coparcenary
Hindu joint family Coparcenary
|1. Hindu joint family is awider body consisting of 1. Coparcenary is amuch narrower body than the
all persons lineally descended from acommon joint family and consists of four male lineal!
ancestor, and includes their wives and unmarried descendants counted from a common ancestor.|
| daughters.
j2. Illegitimate son is member ofHindujointfamily. 2. An illegitimate son is not a coparcener.
I3. There is no limit of generation in Hindu joint 3. Coparcenary includes four generation from and
family. incusive of the eldest surviving male member
in the family.
44. The joint family status cannot end till itis posible 4. The coparcenary gets extinct on partition or on
| in nature or in law to add a male member to the death of last surviving coparcener.
family.
|5. In joint family, existence of joint property is not 5. Existence of jointfamily property is essential in|
necessary. a coparcenary.
6. The members of joint family enjoy very limited 6. The coparceners enjoy very wide rights viz. a|
rights, viz. of maintenance and marriage right to partition and alienate their undivided
expenses of unmarried daughters. interest in the property.

Law of succession determines the rights and interests of joint family members. On the death of
coparcener, his interest in the joint family property devolves on the surviving coparceners by ule of
survivorship and not according to law of succession. [note: rule of survivorship has been abolished now
Changes brought by Hindu Succession Amendment Act, 2005