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COPARCENARY UNDER HINDU LAW: BOUNDARIES
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 Vs. Padmini AIR 1990
Mad 353 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 Vs. Commr. Income Tax AIR 1953 ALL
150 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
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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.
According to Article 220 of Hindu Law, Property is classified into two types:
(1) Joint Hindu Family Property (2) Separate Property. Joint-family Property
is also known as ‘Coparcenary Property and this property consists of (a)
Ancestral Property (b) Property jointly acquired by the members of the Joint
family. (c) Separate property of a member “thrown into the common stock.”
(d) Property acquired by all or any of the coparcener with the aid of joint family
funds.
According to the Hindu Succession Act, 1956, an individual who is born in a
Hindu Undivided Family (HUF) has a legal right over his ancestral property.
Therefore, he is a coparcener (joint-heir) by birth. On August 11, the Supreme
Court of India held that daughters, like sons, have an equal right to inherit
ancestral property . The legislation that conferred coparcenary status on
women dates back to 2005, when the Hindu Succession Act, 1956 was
amended . The verdict answers the question whether the coparcenary right of
daughters comes into effect only if the father — through whom the right is
claimed — was alive on the day the amendment came into force. The top court
ruled that a daughter’s right flows from her birth and not by any other factor.
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Coparcenary property is a property acquired after division of the ancestral
property by the coparceners. Once the ancestral property is divided among
coparceners, it is termed as self acquired property. The division of ancestral
property equally among the inheritors in a Hindu Joint family including male
and female.
Coparcener denotes ‘Joint Heir’ in a Hindu undivided family (HUF) who shares
legal rights for inheriting property, title, and money as defined under Hindu
Succession Laws. In other words, this person can demand the property
partition. Notably, all coparceners are HUF members, but none of them may
be coparceners. Even after marriage, a daughter remains a coparcener and
her children come to become coparceners in her share after her demise.
Following individuals born in a joint family can be a coparcener:
• Male members born in a joint family
• Sons, grandsons and great-grandsons
• Unmarried daughters
• All members of the family descended from a common ancestor
• Wives of male members
• Married daughters (can be a coparcener but not a member of HUF)
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.
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In the case of Commissioner of Gift-tax Vs. N.S. Getty Chettiar 1971 AIR
2410, 1972 SCR (1) 736 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 Vs. Pandurang AIR 1847 Nag. 178 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 CIVIL APPEAL NO.7217 OF 2013 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.
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
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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.
It is necessary to note that the system of the Mitakshara coparcenary loses
its meaning, as membership of joint family is no longer a pre-requisite. The
amended Section 6 of the Hindu Succession Act, 1956 has made a daughter
who is not a member of the family, a coparcener. The system of the
coparcenary proves itself futile as no matter how the property passed onto the
married daughter, it will only benefit the family of her marriage. In essence, it
is perhaps time to reconsider the notion of the coparcener, and in effect re-
look the constituents of the Hindu joint family. However, based on the
analysis of the sources mentioned above it is suggested that the Mitakshara
coparcenary shall now consist of “the common ancestor, the son, son’s son,
son’ son’ son, the daughter of common ancestor, son’s daughter and son’s
son’s daughter”.
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