Formation and Incident under the Coparcenary Property under Dayabhaga and Mitakshara

Theoretical overview

The term ‘Coparcenary’ is used in matters related to Hindu Succession law. A coparcenary is a joint family consisting a common male ancestor with his lineal descendants in the male line four degrees counting from an inclusion of such ancestor.  

Composition

Unlike the Joint Hindu Family, coparcenary consists of all male lineal descendants up to three generations from the last holder of the property. Senior-most member is called the ‘last holder’ and from him up to three generations i.e., son, son’s son, and son’s son’s son constitute the coparcenary. There can be any number of male members in a particular generation.

Every member of the coparcenary is related to each other either by blood or valid adoption. It is a laid rule that no person can become a coparcener by marriage or any agreement to become a coparcener as coparcenary is a creation of law. As per the Hindu Succession Act, 1956 no female member could be a coparcener but it was later altered with the amendment Act of 2005. Now, Section 29A of the Hindu Succession Act provides that a female is entitled to receive the same share in the coparcenary property as that of a son.

Like a Joint Hindu Family, the presence of the senior-most male member is compulsory to start a coparcenary. The presence of at least two male members is necessary to constitute and even to continue a coparcenary. Just like a Joint Hindu Family, in a coparcenary, upper links are being removed subsequently, and lower links are added to the chain, provided there are at least two male members(coparceners) maintaining the status of a joint family. A male member within the three generations from the last holder of the property (total four generations) becomes a coparcener right from his birth i.e. it is a ‘right by birth’ in the family property.

Coparcenary comes to an end either by the partition or by the death of all the male members of the family or the sole surviving coparcener.

Incidents of coparcenary

• The existence of property is a must in a coparcenary. If someone acquires his father’s property during his lifetime, after his death that particular property will be inherited by his son as Joint family property and this will be continued further.
• Before 2005, only males had the right to be a coparcener.
• An insane son is also a coparcener but does not have a right to ask for partition.
• Rule of survivorship applies to the coparcenary property i.e. when a coparcener dies his interest in the joint family property devolves on the surviving coparceners and not by the rule of succession. Since there is a continuous addition and deletion of coparceners by birth and death respectively, therefore there is a fluctuation of interest in the property of every coparcener.
• All coparceners have common ownership and right of possession

Coparcenary under Mitakshara – 

• The coparceners have community of interests and unity of possession
• The brothers and all other coparceners, as long as they are joint, do not have a right to dispose of their share.
• The doctrine of survivorship applies and on the death of the coparcener, his share is taken by the survivor coparcener.
• Coparcenary under mitakshara is a creation of law and cannot be formed by agreement.
• The commencement of coparcenary is the birth of a person who after inheriting the property from ancestors as a sole surviving coparcener gives birth of his son, coparcenary comes into existence. Birth of the son is the starting point.
• Coparcenary between two generations of male members may exist between father and son or, father and sons or, between brother, grandsons or even, between father-his sons and his grandsons.

Coparcenary under Dayabhaga

• Coparceners have specified and ascertain shares in the joint family property
• Brothers and other collaterals hold their shares while undivided, have a right to dispose of their share.
• When coparcener dies issueless, his widow has a right to succeed to his share and to enforce the partition on her own account.
• The formation of the coparcenary under Dayabhaga stems from a desire of the coparceners to live together
• As long as father is alive, he holds the property as a sole and exclusive authority, his death is the starting point of the coparceners
• Coparcenary between two generation of the male members cannot exist between a father and a single son. In case of a single son if the father dies son will be absolute owner and has no right of passing this property to his sons.

Important differences

Important case laws

Sudarshan v. Narasimhulu – It was laid down that no person can become a coparcener by marriage or any agreement to become a coparcener as coparcenary is a creation of law.

Chandra Sen case AIR 1986 – it is clear that, under Hindu law, the moment a son is born , he gets a share in the father’s property and becomes a part of coparcenary. 

Points to remember

• A coparcenary is a joint family consisting a common male ancestor with his lineal descendants in the male line four degrees counting from an inclusion of such ancestor.  
• coparcenary consists of all male lineal descendants up to three generations from the last holder of the property
• Every member of the coparcenary is related to each other either by blood or valid adoption
• Coparcenary comes to an end either by the partition or by the death of all the male members of the family or the sole surviving coparcener.
• Coparcenary under Mitakshara is a creation of law and cannot be formed by agreement.
• The formation of the coparcenary under Dayabhaga stems from a desire of the coparceners to live together