FAMILY LAW –II

MODULE -2
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.

MITAKSHARA SCHOOL

Predominant in almost all parts of India except Bengal and Assam.

Key Features:
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. Property rights are acquired by birth in the joint family property.

Hindu joint family was defined in a case of Rajgopal v Padmini 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.

The father is not the absolute owner of ancestral property; sons, grandsons, and great-grandsons have rights

by birth.

The division of property follows the rule of survivorship.

DAYABHAGA SCHOOL

Origin: Based on the Dayabhaga, primarily a digest on inheritance laws.

Predominant in Bengal and Assam.

Key Features:

• Sons do not acquire rights by birth in ancestral property; they get rights only after the father’s death.

• The father has absolute power over property during his lifetime.

• Property devolves by succession (not survivorship).

• Recognizes widow’s right to inherit husband’s property.

COMPARISON: MITAKSHARA VS DAYABHAGA

Feature Mitakshara Dayabhaga

Basis of rights By birth By death of father

Father’s power Limited (sons have rights) Absolute (till death)

Widow’s rights Limited Recognized as heir

Succession Survivorship Inheritance

SURVIVORSHIP UNDER HINDU LAW
In the context of the Hindu joint family and coparcenary system, survivorship means that when a coparcener (a
male member entitled by birth to joint family property) dies, his interest in the joint family property does not pass
by inheritance (i.e., through will or succession laws).
Instead, it automatically passes to the surviving coparceners.

Survivorship = automatic transfer of a deceased coparcener’s share to surviving coparceners.

MITAKSHARA JOINT FAMILY
MEANING
A Mitakshara Joint Family (or Hindu Undivided Family – HUF) is a group of people lineally descended from a common
ancestor, living together, and bound by common worship, food, and property.
Governed by the Mitakshara School of Hindu law.

COPARCENARY
Core unit within the joint family.
Consists of male members up to four generations (son, grandson, great-grandson, great-great-grandson).
After 2005 amendment (Hindu Succession Act), daughters are also coparceners.

OWNERSHIP OF PROPERTY
Property is ancestral (inherited from father, grandfather, great-grandfather).
Each coparcener acquires an interest by birth.
No coparcener can claim specific property until partition.
MITAKSHARA COPARCENARY – FORMATION AND INCIDENTS

FORMATION OF MITAKSHARA COPARCENARY

The Mitakshara School of Hindu Law (followed in most of India except Bengal and Assam) recognizes a special type

of joint family ownership called coparcenary.

A coparcenary is a narrower body within the Hindu joint family, consisting only of those male members (and, since

the 2005 Amendment, daughters also) who acquire an interest in the ancestral property by birth.

Earlier, only sons, grandsons, and great-grandsons of the last holder of property were considered coparceners.

After the Hindu Succession (Amendment) Act, 2005, daughters have equal rights in the coparcenary property as sons.

Thus, a Mitakshara coparcenary is formed automatically by birth in a joint Hindu family that owns ancestral property.

It does not depend on any agreement or choice.

CHARACTERISTICS OF MITAKSHARA COPARCENARY

The main features or incidents of a Mitakshara coparcenary are:

(a) Formation by Birth

Coparcenary rights are acquired by birth (or by adoption), not by inheritance after the father’s death.

(b) Limited Membership

Only the lineal descendants up to four generations from the last holder of property are members of the coparcenary.

Before 2005, only males were included; after the amendment, daughters are also coparceners.

(c) Unity of Possession

The property is jointly owned by all coparceners.

Every coparcener has equal ownership, but not a fixed share until partition.
COMMUNITY OF INTEREST

No coparcener can claim any specific portion of the property until partition.

Each coparcener has an undivided interest in the whole property.

RIGHT TO PARTITION

Any coparcener (including daughters, after 2005) can demand partition of the coparcenary property.

Upon partition, each coparcener receives a defined share.

RIGHT TO SURVIVORSHIP (BEFORE 2005)

Traditionally, on the death of a coparcener, his share would pass to the surviving coparceners by the rule of

survivorship, not by succession.

After the 2005 Amendment, the rule of survivorship has been abolished, and succession is governed by the Hindu

Succession Act.
INCIDENTS (CHARACTERISTICS) OF DAYABHAGA COPARCENARY

FOUNDATION OF COPARCENARY
A Dayabhaga coparcenary arises after the death of the father.
Sons do not acquire an interest in ancestral property by birth, unlike Mitakshara.
Ownership of Property
The father is the absolute owner of property during his lifetime.
He can gift, sell, or will the property without sons’ consent.
Formation of Coparcenary
Coparcenary comes into existence only after the father’s death, when property passes to heirs.
At that point, heirs form a coparcenary.
Right by Inheritance (Not by Birth)
Members inherit property after the death of the last owner.
No community of ownership before that.
No Survivorship Rule

The rule of survivorship (present in Mitakshara) does not apply.

Property devolves by succession and not by survivorship.

Female Membership

Widows and other female heirs can be members of the coparcenary (they inherit under Dayabhaga).

Partition Rights

Partition can take place only after the death of the father when heirs inherit.

During the father’s lifetime, no son has a right to demand partition.

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 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.
COMPARISON OF PROPERTY RIGHTS UNDER MITAKSHARA & DAYABHAGA LAW

Aspect Mitakshara Law Dayabhaga Law

Basis of Rights By birth (coparceners get interest at birth) By death (rights arise only after father’s death)

Nature of Heritage Unobstructed heritage – rights are not obstructed by Obstructed heritage – rights arise only after death of
father’s ownership owner

Father’s Power over Property Limited – cannot alienate ancestral property without Absolute – father can sell, gift, or will property freely
consent (except for legal necessity/benefit of estate)

Female’s Rights (before 2005 amendment) Generally excluded from coparcenary Widow and other female heirs can inherit property

Rule of Devolution Survivorship – property passes automatically to Succession – property passes by inheritance as per
surviving coparceners heirship

Partition Coparcener can demand partition even during father’s Partition possible only after father’s death
lifetime

Coparcenary Formation Exists from birth (4 generations in lineal descent) Forms only after father’s death, when heirs inherit

Ownership of Property Joint ownership – community of interest and unity of Ownership comes only after succession opens
possession (individual shares clearer)
KARTA OF THE JOINT FAMILY

POSITION OF KARTA

 The Karta is the manager and head of the joint Hindu family (under Mitakshara law mainly).
 He represents the family in all social, legal, and financial matters.
 Normally, the senior-most male member is the Karta.
 By custom, in some cases (if accepted by members), even a junior male member or widow/mother can act as
Karta.

POWERS OF THE KARTA

The Karta has wide powers, though not absolute. These include:
 Management of property
 Complete control over day-to-day management of joint family property.
 Power of alienation (sale, mortgage, gift, etc.)
 Allowed only for legal necessity, benefit of the estate, or indispensable duties (e.g., marriages, religious
obligations).
 Otherwise, alienation can be challenged by coparceners.
 Power to represent family
 Karta represents the family in litigation, contracts, and dealings with outsiders.
PRIVILEGES OF THE KARTA

 Discretionary power: His decisions regarding family affairs are normally binding.
 Not required to maintain accounts: Unlike a trustee, he is not bound to keep detailed accounts unless
fraud/misappropriation is alleged.
 Burden of proof: If his acts are questioned, the burden lies on the person challenging them to prove misconduct.

OBLIGATIONS/DUTIES OF THE KARTA

 Maintenance of family – Duty to maintain all members (coparceners + dependents).

 Marriage and religious duties – To arrange marriages of unmarried members and perform necessary ceremonies.
 Debt repayment – Obliged to pay off family debts, provided they are not immoral or illegal.
 Fair distribution – Must divide property fairly at the time of partition.
 Care of property – Must manage family property prudently and not waste it.
ALIENATION OF SEPARATE PROPERTY
Separate property = property that belongs exclusively to one individual (e.g., self-acquired property, gifts, bequests,
property received on partition).
 Absolute Right:
 The owner has full and unrestricted power of alienation.
 He can sell, gift, mortgage, or bequeath by will without consent of others.
 No limitations:
 Consent of family members or coparceners is not needed.
 Exceptions:
• If separate property is impressed with a special character (like property dedicated to religious endowment),
alienation may be restricted.
ALIENATION OF COPARCENARY PROPERTY

Coparcenary property = ancestral/joint family property held jointly by coparceners (under Mitakshara).

The Karta is the manager, not absolute owner.

Powers of Alienation

 Karta can alienate only for:

 Legal necessity – e.g., marriage expenses, medical treatment, maintenance.

 Benefit of estate – acts that improve or preserve property (e.g., irrigation works, protecting from loss).

 Indispensable duties – religious/charitable obligations binding on family (e.g., shraddha, pilgrimage).

 Consent of coparceners:

 If all adult coparceners give consent, alienation is valid even without necessity.

 If without consent, it must be justified by necessity/benefit.

DOCTRINE OF PIOUS OBLIGATION AND ANTECEDENT DEBTS

Under the Hindu mythology and the digests of the Hindu religion, repayment of debts is considered to be an

important aspect of the Hindu mythology and plays an important role at the time of the death of the person. It has

been said by various Hindu sages and digests that if a person do not repay the debt of a person then he will re-born

as a slave or servant in the house of creditor Hindu sages also said that if a Hindu dies indebted it is the duty of his

son to repay all the debts. This is the religious or pious duty of the son to discharge his father from the sin of non

repayment of debts.
DOCTRINE OF PIOUS OBLIGATION ( Religious or Devotional Obligation )

Meaning: Under Mitakshara Hindu Law, a son has a religious duty (pious obligation) to discharge the debts of his father,
grandfather, and great-grandfather, provided such debts are not illegal, immoral, or against public policy.
This duty arises from the belief that non-payment of debts affects the soul of the deceased in the afterlife.

Key Features:

 Liability is not personal, but arises from the son’s right in the joint family property.
 Applies to 3 lineal ascendants: father, grandfather, great-grandfather. ( PAY BACK)
 Sons are liable even without their consent.
However, they are not liable for debts that are:
Avyavaharika (immoral or illegal debts, e.g., gambling debts, debts for illicit purposes).
Debts tainted with immorality or criminality.

Solely religious obligation: Salvation of souls (MOKSHA)

Case Law:
Sidheshwar Mukherjee v. Bhubneshwar Prasad Singh (1954) – clarified that sons are bound to discharge the father’s
debts unless immoral/illegal.
Abolition:
The Hindu Succession (Amendment) Act, 2005 abolished the doctrine of pious obligation for sons, grandsons, and
great-grandsons (for debts contracted after 9 September 2005).
DOCTRINE OF ANTECEDENT DEBT
Meaning: This doctrine protects the father’s right to alienate (sell, mortgage, gift, etc.) joint family property to discharge
his antecedent debts.
Conditions for Validity:
• The debt must be antecedent in fact and time (i.e., incurred before the alienation of property).
• The debt must be independent of and not part of the alienation transaction itself.
• The debt should not be tainted with immorality or illegality.
Why Important?
Even though the father is the Karta and manager of joint family property, he cannot normally alienate coparcenary
property without necessity/benefit to estate. But, if the alienation is to repay an antecedent debt, it is valid and binding on
sons.
Case Law:
• Brij Narain v. Mangla Prasad (1924) – Privy Council laid down rules:
• Father can alienate for antecedent debts.
• Alienation binding on sons, unless debts are immoral/illegal.
EXAMPLE:

Father borrows money in 1990 → mortgages joint family land in 1995 to repay → valid, as
debt was antecedent.

Aspect Pious Obligation Antecedent Debt

Basis Religious duty of son to repay father’s debts. Legal principle validating father’s alienation of family
property.

Who is Liable? Sons liable to discharge father’s debts (now Father can bind sons by alienating joint family
abolished by 2005 amendment). property for pre-existing debts.

Scope of Liability Sons’ liability was personal (limited to joint family Sons are bound only if father alienates property for
property). antecedent debt.

Existence of Debt Applies to all debts of the father (except Debt must exist prior to alienation and independent
illegal/immoral). of it.

Current Status Abolished in 2005. Still valid principle in Hindu law.

Religious vs. Legal Religious doctrine (soul’s peace). Legal doctrine (protection of creditors).
SECTION 6 OF THE HINDU SUCCESSION ACT, 1956 (AS AMENDED IN 2005) WHICH DEALS WITH
“DEVOLUTION OF INTEREST IN COPARCENARY PROPERTY”.

BEFORE 2005 AMENDMENT

Section 6 originally provided that when a male Hindu coparcener died, his interest in the Mitakshara coparcenary

property would devolve by survivorship to the other surviving coparceners, not by succession.

However, if the deceased left behind a female relative specified in Class I of the Schedule closest relatives of the

deceased (such as widow, daughter, mother, etc.) or a male relative claiming through such female (such as son of a

predeceased daughter), then his interest would devolve by succession under the Act, not by survivorship.

This was criticized for being discriminatory against women.

AFTER 2005 AMENDMENT (EFFECTIVE FROM 9 SEPTEMBER 2005)
Parliament amended Section 6 to bring gender equality in coparcenary rights.

KEY FEATURES:
• Daughters become coparceners by birth, like sons.
• They have the same rights in the coparcenary property as sons.
• They are subject to the same liabilities as sons.
• On the death of a coparcener (male or female), his/her interest devolves by testamentary or intestate
succession under the Act, not by survivorship.
• A daughter is also entitled to demand partition of the coparcenary property.
• She has the right to dispose of her share by will.
•Proviso: Any partition or disposition of property before 20 December 2004 was not disturbed by the amendment.
PARTITION IN HINDU LAW

MEANING
•Partition means the division of joint family or coparcenary property so that the unity of ownership and community
of interest among coparceners comes to an end.
•After partition:
• The coparcenary ceases.
• Each coparcener becomes an absolute owner of his/her share.
• Such property is no longer coparcenary property but separate property, which can be dealt with
independently.

LEGAL EFFECT OF PARTITION

•Severance of status: Partition does not always mean physical division; even a clear expression of intention to separate
is sufficient to end the joint status.
•Individual ownership: After partition, each coparcener’s share is definite and can be sold, gifted, or bequeathed.
•End of survivorship: The doctrine of survivorship ceases to apply once partition takes place.
MODES OF PARTITION

BY AGREEMENT
Members of a coparcenary may mutually agree to divide property.
Partition may be oral or written (though a written document like a partition deed or family settlement is preferred for
evidence).
BY SUIT FOR PARTITION
If members disagree, any coparcener (including a daughter after the 2005 amendment) may file a partition suit in
court.
The court then divides the property either by metes and bounds (physical division) or by declaring separate
shares.
BY CONDUCT
Even without a formal declaration, partition can be inferred if there is clear intention to separate.
Examples:
Maintaining separate accounts.
Enjoying property separately.
Business run independently from separate funds.
•.
SHARE OF COPARCENERS AT PARTITION

•The share of each coparcener is not fixed from the beginning but fluctuates depending on births and deaths in

the family.

•At the moment of partition, the shares become fixed and definite.

Example:

•A father and his two sons are coparceners. Initially, they each have 1/3rd share.

•If one son dies leaving a son, that grandson steps in by survivorship, and shares change.

•When they finally partition, the shares are calculated as per the family tree on the date of partition.
RIGHTS OF DAUGHTERS AFTER 2005 AMENDMENT

Daughters are coparceners by birth, just like sons.

•They have:
• Equal rights to seek partition.
• Equal share in coparcenary property.
• Right to demand accounts of the joint property.
• Right to dispose of their share (sale, gift, or will).
•The amendment abolished gender inequality in coparcenary rights
MATRILINEAL JOINT FAMILY
Meaning
•In a patrilineal joint family (like under Mitakshara/Dayabhaga schools), descent and inheritance are traced through
the male line (father → son → grandson).
•In a matrilineal joint family, descent and inheritance are traced through the female line (mother → daughter →
daughter’s children).
So, property passes from a woman to her heirs in the female line, not through the male line.
EXISTENCE IN INDIA
While the Mitakshara and Dayabhaga schools of Hindu law are patrilineal, there are some customary systems in
India where matrilineal joint families exist.
The best examples are:
Nairs of Kerala (Marumakkattayam system).
Aliyasantana system among Bunts in coastal Karnataka.
These are matrilineal forms of joint family recognized by custom, not by the classical Hindu texts.
FEATURES OF MATRILINEAL JOINT FAMILY

1.Line of Descent – Traced through the mother’s side.

2.Head of the Family – Usually the eldest female is central, but management is often by her brother (karnavan among

Nairs).

3.Property Ownership – Property is held jointly by the family (tarwad in Kerala, kutumba in Karnataka).

4.Inheritance – Property passes from mother to daughter, not from father to son.

5.Male’s Position – A man does not pass property to his children; his children belong to the mother’s family.

6.Coparcenary Concept – Different from Mitakshara/Dayabhaga; here, daughters and their children form the core of

succession.