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CHANAKYA NATIONAL LAW UNIVERSITY

FAMILY LAW PROJECT



TOPIC-RIGHT OF COPARCENER TO CHALLENGE ALLIENATION



Submitted by-
AKASH RAJ
Roll no.-516





Acknowledgement


This is to state that I (AKASH RAJ, ROLL 516) completed my Fourth semester
project work of Family law on topic right of coparcener to challenge alienation
This project would have not come to an end successfully without the help of many
distinguished and undistinguished personalities. I sincerely acknowledge the help
rendered to me by our faculty of Family law,Mr. shaiwal satyarthi . He has helped
me a lot whenever I needed any sort of assistance and guidance related to the topic.
I acknowledge the sincere help of our library staffs and our net center in charge,
who by rendering me help in locating appropriate resources to collect materials. It
is a good platform to recognize the help and guidance furnished to me by many
persons I this regard; I heartily acknowledge their help and support rendered to me,
without the help of the above mentioned personalities and many unrecognized
people this project would never been completed.











TABLE OF CONTENT























JOINT HINDU FAMILY

A j oi n Hi ndu f ami l y consi st s of al l per sons l i neal l y descended
f r om a common ancest or , including their wives and unmarried daughters
1


1 An undivided family is ordinarily a joint one not only in estate, but also in food
and worship
2


2. After the separation of estate to the members of the joint family, the family
ceases to be a joint one. The Hindu family should at least constitute two members

3. Even if the total number of the male coparceners is temporarily reduced into a
single individual, the character of the property remains the same.


coparcenary


A Hindu Coparcenary is a much narrower body than the joint family, which is
purely a creation of law. The conception of a joint Hindu family
constituting a coparcenary is that of a common male ancestor with his lineal
descendants in the male line within four degrees counting from, and inclusive of,
such ancestor. It includes only those persons who acquire by birth an interest in
the joint or Coparcenary property.

These are sons, grandsons and great grandsons of the holder of the joint
property for the time being. After the amendment of the 2005, a daughter
has beenincluded as a coparcener along with the sons of the coparcener.
Difference between ancestral property and separate property is the interlinked
with the concept of Coparcenary. The property jointly inherited by a Hindu by
birth along with his sons, grandsons and great grandsons from his male lineage of
ancestors is ancestral property. All other property is included under separate
property.



1
Commissioner of Income-tax v Luxminarayan (1935) 59 Bom 618
2
Sri Ragunada v Brozoa Kishor (1876) 49 Mad 98

Coparcenary and separate property

Section 30, Hindu Succession Act entitles a Hindu to make a testamentary
disposition of hisinterest in the joint family property. It doesnt enable him to
alienate his interest by way of gift ir by any other mode, say sale mortgage, lease,
exchange etc. These are the inter vivo transactions .They differ from a will.
Therefore where Hindu law refuses any Hindu the permission to alienate his
interest in the joint family in any of these modes, the restriction cannot be taken
as removed by implication from section 30 of the Hindu Succession Act.

A male member of the Mitakshara coparcenary was not authorised to make a will
of this interest in the joint family property before the commencement of HSA. The
reason for the disability was that on the death of a coparcener his interest in the
coparcenary property devolved by survivor ship on the surviving coparceners.
There was nothing on which the will could operate
3
.Any provision of this Act or
any other law which renders such property incapable of being disposed by will,
stands overruled by this section.All those properties of the deceased intestate that is
heritable come under the term property includes under the Act. It includes his
self-earned property as also his share in the Mitakshara coparcenary if he is
survived by any of the female heirs or daughters son as mentioned in Class I of
the Schedule. It also includes the property that he might have inherited from his
grandfather or father after the Act came into force.

All those properties of the deceased intestate that is heritable come under the term
property includes under the Act. It includes his self-earned property as also his
share in the Mitakshara coparcenary if he is survived by any of the female heirs
or daughters son as mentioned in Class I of the Schedule. It also includes
the property that he might have inherited from his grandfather or father after the
Act came into force
4
.



3
Lakshman Dada Naik v. Ramchandra Dada Naik (1881) 7 IA 181
4
Extract from, Intestate Succession: Devolution Of Property After The Death Of A Hindu Without A Will,
Visitedon May 5that <http://www.legalserviceindia.com/article/l258-Intestate-Succession.html


CHARACTERISTICS OF THE COPARCENARY PROPERTY

Unity of ownership: The ownership of property is vested in the whole body of
thecoparceners.

In determinability of shares: The interest of a coparcener in the property is
fluctuatingand is capable of being enlarged by deaths in the family and liable to be
decreased by births in the family.

Community of interest: No coparcener is entitled to any independent and
exclusiveinterest in the coparcenary property nor is he entitled to the exclusive
possession of any part of the coparcenary property. His right is that of an undivided
interest.

Rights by birth: Coparcenary members acquire interest in the property by birth
under Mithakshara law while under Dayabhaga, nobody inherits any interest by
birth.

Devolution of survivorship: One of the interesting features of Mithakshara
coparcenary isthat on the death of a coparcener, his interest in the property passes
on to other