TITLE OF THE RESEARCH PAPER

JOINT FAMILY AND COPARCENARY PROPERTY

By

Name of the Student: P. RAJ KUMAR

R0ll No.: 18LLB068

Semester: IV

Name of the Program: 5 year (B.A., LL.B.)

NAME OF THE FACULTY MEMBER:Prof Dr. P. Vara Lakshmi

Date of Submission:
SUBJECT: FAMILY LAW -II

DAMODARAM SANJIVAYYA NATIONAL LAW UNIVERSITY

NYAYAPRASTHA “, SABBAVARAM,
VISAKHAPATNAM – 531035, ANDHRA PRADESH

1
ACKNOWLEDGEMENT:
I am highly indebted to my Hon’ble Family Law Professor, for giving me a wonderful opportunity to
work on the topic: “JOINT FAMILY AND COPARCENARY PROPERTY” and it is because of her
excellent knowledge, experience and guidance, this project is made with great interest and effort. I
would also like to thank my seniors who have guided my knowledge of doing research on such
significant topic. I would always also take this as an opportunity to thank my parents for their support.
I have no words to express my gratitude to each person who have guided and suggested me while
conducting my research work.

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 Abstract
The Joint family of Hindu Law is an institution sue generis. It is peculiar to Hindu society. It consists a
male, his wife and unmarried daughters and his male descendants, their wives and unmarried
daughters. It is Thus patriarchal in character. Inside this joint family there is what called the
Coparcenary. The coparceners are the owners of the joint family property. The coparceners have the
right of partition in that property. Coparcenary consists of common ancestor and three degrees of
male lineal descendants.”
Coparceners are those who have interest by birth in the joint family property. In the ancestral property
of a male his son, grandson and great grandson have an interest by Birth.

Example:
A→B1→B2→B3→B4→
If A dies B4 is added so on. To begin with the Coparcenary father and son relationship is necessary
and for its continuation father's presence is not necessary.

“The concept of Joint Hindu Family and Coparcenary is believed to be one of the cornerstones of the
Hindu family law. It is extremely important to understand the features and differences between the
two. The researcher describes what is a Joint Hindu Family and a Coparcenary under Mitakshara and
Dayabhaga school of law, respectively, and then highlights the difference between the two along with
a tabular description. “

The researcher would also make a distinction between what a joint family is and what coparcenary
means. The researcher would deal with relevant case laws inorder to understand the concept more
clearly.

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 TABLE OF CONTENTS
1. INTRODUCTION……………………………………………….………5
2. MITAKSHARA SCHOOL OF LAW…………………….…………….7
3. JOINT HINDU FAMILY…………………………….………………….7
3.1 COMPOSITION…………………………….……………………….8
3.2 BEGINNING…………………………………………………….……9
3.3 EXIT……………………………………………………….…………..9
3.4 IMPORTANT POINTS………………………………………………9
3.5 ANALYSIS THROUGH CASE LAWS…….……………………..12
4. COPARCENARY…………………………………………………….…13
4.1 WHAT IS COPARCENARY………………………………….……13
4.2 AN OVERVIEW…………………………………………………….14
4.3 COMPOSITION……………………………………………………..16
4.4 BEGINNING……………………………………………………….…16
4.5 EXIT…………………………………………………………………..17
4.6 IMPORTANT POINTS……………………………………………...17
5. POINT OF DIFFERENCES AND ILLUSTRATIONS……………….19
6. JOINT HINDU FAMILY AND COPARCENARY- DISTINCTION…19
7. DAYABHAGA SCHOOL OF LAW…………………………………….20
8. SITUATION AFTER THE 2005 AMENDMENT………………………21
9. CONCLUSION…………………………………………………………….21
10. BIBLIOGRAPHY………………………………………………………….23

4
INTRODUCTION:

“The c0ncept 0f J0int Hindu Family and C0parcenary is believed t0 be 0ne 0f the c0rnerst0nes 0f the
Hindu family law. It is extremely imp0rtant t0 understand the features and differences between the
tw0. This article describes what is a J0int Hindu Family and a C0parcenary under Mitakshara and
Dayabhaga sch00l 0f law, respectively, and then highlights the difference between the tw0 al0ng with
a tabular descripti0n.”

C0parcenary and j0int Hindu family are n0t syn0nym0us t0 each 0ther. J0int Hindu family signifies a
big instituti0n which c0nsists 0f a c0mm0n ancest0r, his m0ther, wife, male descendants, their wives,
wid0ws and unmarried daughters bel0w t0 any degree. It is based 0n the sapinda relati0nship 0f the
members.

It is a creature 0f law, n0t 0f the act 0f parties. 0n the 0ther hand c0parcenary is a limited b0dy which
includes 0nly th0se male members wh0 have the right by birth in the ancestral pr0perty and theref0re,
they enj0y the right t0 demand partiti0n in such pr0perty. Thus the c0parcenary includes the male
descendant’s upt0 three generati0ns, i.e. s0ns, s0n’s s0n and s0n’s s0n’s s0n. In Surjit Lai v.
C0mmissi0ner 0f Inc0me tax the Supreme C0urt 0bserved:

“A Hindu c0parcenary is much narr0wer b0dy than the j0int family. It includes 0nly th0se pers0ns
wh0 acquire by birth an interest in the j0int 0r c0parcenary pr0perty and these are s0ns, grands0ns and
great grands0ns 0f the h0lder 0f the j0int pr0perty f0r the time being. Since under the Mitakshara law,
the right t0 j0int family pr0perty by birth is vested in the male issue 0nly, females wh0 c0me in 0nly as
heirs t00bstructed heritage, cann0t be c0parceners. 0utside the limits 0f c0parcenary, there is a fringe
0f pers0ns, males and female, wh0 c0nstitute an undivided 0r j0int family.

There is n0 limit t0 number 0f pers0ns wh0 can c0mp0se it n0r t0 their rem0teness fr0m the c0mm0n
ancest0r and t0 their relati0nship with 0ne an0ther. The j0int Hindu family is thus a larger b0dy

5
c0nsisting 0f a gr0up 0f pers0ns wh0 are united by the time 0f Sapindaship arising by birth, marriage
0r ad0pti0n. The fundamental principle 0f Hindu j0int family is Sapindaship.”

The j0int family differs fr0m the c0parcenary 0n the f0ll0wing p0ints:—

Firstly, the j0int family is unlimited b0th as t0 the number 0f pers0ns and rem0teness 0f their descent
fr0m the c0mm0n ancest0r whereas c0parcenary is 0pen t00nly certain members 0f j0int Hindu
family. Sec0ndly, a c0parcenary is limited t0 male members 0f the family wh0 are within the rule 0f
f0ur degrees inclusive 0f the c0mm0n ancest0r, whereas there is n0 such limitati0n in the case 0f a
j0int family. Thirdly, since c0parcenary is c0nfined t0 males 0nly, it c0mes t0 an end with the death 0f
the last surviving c0parcener, whereas a j0int family c0ntinues even after his death. It may c0ntinue
with females 0nly. F0urthly, th0ugh every c0parcenary is j0int family 0r part о I 0ne, the c0nverse is
n0t always true, i.e., every j0int family is n0t a c0parcenary. The Allahabad High C0urt uph0lding the
ab0ve views 0bserved: “A Hindu j0int family c0nsists 0f all pers0ns lineally descended fr0m a
c0mm0n ancest0r and includes their wives and unmarried daughters but a Hindu c0parcenary is much
narr0wer b0dy and includes 0nly th0se pers0ns wh0 acquire by birth an interest in the j0int 0r
c0parcenary pr0perty th0se being the s0ns, grands0ns and great grand s0ns 0f the h0lder 0f the j0int
pr0perty f0r the time being.” Fifthly, a j0int Hindu family is bigger instituti0n c0vering in its f0ld all
the male and female members descended fr0m a c0mm0n ancest0r. It includes the unmarried
daughters als0, whereas a c0parcenary is a narr0wer b0dy. It includes 0nly th0se pers0ns wh0 acquire
by birth an interest in the j0int c0parcenary pr0perty, being the s0ns, grands0ns and great grands0ns 0f
the h0lder 0f the j0int pr0perty f0r the time being.

The illegitimate s0ns 0f a c0parcener are n0t the members 0f a c0parcenary, alth0ugh they are entitled
t0 maintenance. Since they are n0t c0parceners, they d0 n0t enj0y the right t0 demand partiti0n. But
after the death 0f the father such illegitimate s0ns can claim partiti0n and will be entitled t0 equal
share. In Harde0 Rai v. Shakuntala Devi1, the C0urt 0bserved that, the distincti0n between
Mitakshara c0parcenary pr0perty and j0int family pr0perty, a Mitakshara c0parcenary carries a
definite c0ncept; it is b0dy 0f individuals having been created by law unlike a j0int family which can
be c0nstituted by agreement 0f the parties. The C0urt als0 held that when intenti0n is expressed t0
partiti0n and share 0f each 0f c0parceners bec0mes clear and 0nce share 0f a c0parcener is

1
Hardeo Rai v Sakuntala Devi, 2008 (7) SCC 46.

6
determined, it ceases t0 be c0parcenary. Parties in such an event w0uld n0t p0ssess pr0perty as “J0int
Tenants” but as tenants in c0mm0n.

MITAKSHARA SCHOOL 0F LAW:

“It is 0ne 0f the Hindu law sch00ls that g0vern the successi0n 0f pr0perty in a Hindu family. J0int
Hindu Family is an imp0rtant c0ncept under Mitakshara sch00l under which the s0n, grands0n and
grands0n’s s0n have a right by birth in the family pr0perty. It is further divided int0 4 sch00ls:”

 The Benaras sch00l;

 The Mithila sch00l;
 The Maharashtra sch00l;
 The Dravida sch00l.

What is a J0int Hindu Family?

“J0int Hindu Family is an inevitable and fundamental c0ncept 0f the Hindu family law which in
present-day is g0verned by the Hindu Successi0n Act, 1956. It is a n0rmal c0nditi0n 0f Hindu s0ciety.
F0r a Hindu, it is a never-ending pr0cess, if in 0ne generati0n it is br0ught t0 an end by the means 0f a
partiti0n, it c0mes back int0 existence in the next generati0n aut0matically. This rule gives supp0rt t0
the presumpti0n that every Hindu family is a J0int Hindu family.”

“It is presumed that the family c0ntinues t0 be a j0int family if it is j0int in affairs 0f f00d, w0rship, and
estate as 0bserved in Rukhmabai v. Lala LaxmiNarayan2; Rajag0pal v Padmini3. H0wever, if a
family is n0t j0int in f00d and w0rship, i.e. even if they live separately, they c0nstitute a J0int Hindu
family pr0vided they are j0int in the estate. A J0int Hindu Family is neither a c0rp0rati0n n0r a juristic
pers0n as they d0 n0t have a separate legal entity fr0m that 0f its members as held in the case 0f

2
Rukhmabai v Lala Laxminarayan and ors., 1960 AIR 335
3
Rajagopal v Padmini, 1996 AIR 238

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Chh0tey Lal and 0rs. v. Jhandey Lal and Anr.4 It is a unit and is represented by the Karta 0f the family
in all matters.”

“A Hindu j0int family c0nsists 0f the c0mm0n ancest0r and his lineal male descendants up t0 any
generati0n t0gether with the wife 0r wives (0r wid0ws) and unmarried daughters 0f the c0mm0n
ancest0r and 0f the lineal male descendants. The existence 0f the c0mm0n ancest0r is necessary f0r
bringing a j0int family int0 existence, f0r its c0ntinuance, c0mm0n ancest0r is n0t a necessity.”

“Acc0rding t0 Sir Dinshaw Mulla, “A j0int Hindu Family c0nsists 0f all pers0ns lineally descended
fr0m a c0mm0n ancest0r and includes their wives and unmarried daughters. A daughter ceases t0 be a
member 0f her father’s family 0r marriage, and bec0mes a member 0f her husband’s family.” A j0int
and undivided family is the n0rmal c0nditi0n 0f Hindu s0ciety. J0int Hindu family is an evitable and
fundamental c0ncept 0f the Hindu family law which in present- day is g0verned by the Hindu
Successi0n Act, 1956. It is a n0rmal c0nditi0n 0f Hindu s0ciety. F0r a Hindu, it is a never- ending
pr0cess, if in 0ne generati0n it is br0ught t0 an end by the means 0f a partiti0n, it c0mes back int0
existence in the next generati0n aut0matically. This rules gives supp0rt t0 the presumpti0n that every
Hindu family is a J0int Hindu family.”

COMPOSITION:

“It c0nsists 0f all the family members i.e. all the male members descended lineally up t0 any
generati0n fr0m a c0mm0n ancest0r t0gether with their m0thers, wives, wid0ws, and unmarried
daughters as 0bserved in Surjit Lal Chhabda v. CIT5. A daughter remains a part 0f her parents’ j0int
family, till the time she is unmarried. 0nce she gets married, she bec0mes a part 0f her husband’s J0int
Hindu family.”

“If the daughter is deserted by her husband 0r bec0mes a wid0w, and returns t0 her father’s h0me
permanently, she again bec0mes a part 0f that J0int Hindu family. Her children, h0wever, remain a
part 0f their father’s J0int Hindu family and d0 n0t bec0me a part 0f the m0ther’s father’s J0int Hindu

4
Chhotey Lal and ors. v Jhandey Lal and Anr., AIR 1972 All 924
5
Surjit Lal Chhabda v Commissioner 0f Income Tax, 1976 AIR 109

8
family. It was 0bserved in the case 0f Gur Narain Das v. Gur Tahal Das6 that even an illegitimate s0n
0f a male descendant will be a part 0f his J0int Hindu family.”

Beginning:

“It is pertinent t0 n0te that with0ut a c0mm0n ancest0r J0int Hindu Family cann0t be br0ught int0
existence. The presence 0f a c0mm0n ancest0r is a necessity f0r its beginning, but it is n0t necessary
f0r its c0ntinuati0n i.e. the death 0f the c0mm0n ancest0r d0es n0t bring the J0int Hindu Family t0 an
end. Upper links 0f the family are rem0ved and l0wer links are added by marriage, birth, 0r ad0pti0n
0f the child in the marriage. This pr0cess c0ntinues as l0ng as it d0es n0t bec0me extinct. The
members are b0und by the fundamental principle 0f Sapinda relati0nship(bel0nging t0 the same
ancest0rs, up t0 three and five lines 0f ascent fr0m m0ther’s and father’s side, respectively) 0r family
relati0nship.”

Exit:

The status 0f being a part 0f the J0int Hindu Family can be ceased in the f0ll0wing cases:

 By c0nversi0n t0 an0ther religi0n 0r faith.

 By marriage t0 a n0n-Hindu(a pers0n wh0 is n0t Hindu as per Secti0n 2 0f the Hindu
Marriage Act, 1955 which include a Muslim, Jew, Parsi 0r Christian by religi0n).
 By being given in ad0pti0n t0 a third party by the c0mpetent parents.
 By marriage 0f a daughter.

IMPORTANT POINTS:

 P0siti0n when there is 0nly 0ne male member in the family

“In such a case the J0int Hindu family can still c0ntinue t0 functi0n as the requirement 0f a male
member is essential t0 start a J0int Hindu family and n0t f0r its c0ntinuance. It is n0t necessary t0 have
6
Gur Narain Das v Gur Tahal Das, 1955 AIR 225

9
at least tw00r m0re male members in the family t0 make it a Hindu Undivided family as a taxable
entry. In the case 0f CIT v. G0medalli Lakshminarayan7 it was held that even if the c0parcenary d0es
n0t exist in a family still that family c0ntinues t0 be a Hindu Undivided family.”

 P0siti0n when there are 0nly female members (wid0w)

0n the death 0f the s0le male member, a j0int Hindu family can c0ntinue t0 exist at the instance 0f

already existing female members 0f the family. The term ‘c0ntinuati0n’ is different fr0m starting 0r
f0rming a j0int family f0r the first time.

In the case 0f CIT v. Sarwan Kumar8, the Supreme C0urt held that 0n the death 0f the last surviving
male member, the 0ther family members can c0ntinue t0 be a J0int Hindu family, even if they are n0t
c0parceners. The death 0f the male member is a self declarat0ry fact that there was an existence 0f
male members in the j0int family.

The c0urt in the case 0f Att0rney General 0f Ceyl0n v. Arunachalam Chettiar9 held that as per the
law, s0 l0ng as the female members 0f the family can add a male member t0 the family, a j0int family
d0es n0t c0me t0 an end.

Illustrati0n:

 If A and B are br0thers, C and D are wives 0f A and B respectively. F0ur 0f them t0gether
c0nstitute a J0int Hindu family.
 If A and B die in a car accident then als0, C and D can c0ntinue the J0int Hindu family
pr0vided, if either 0f them is already pregnant with the child 0f their husband 0r if they
decide t0 ad0pt a male child.

Theref0re, the test laid d0wn is the p0tential 0f the female members t0 add a male member t0 the
family either by natural means 0r lawful means as 0bserved in Ash0k Kumar Ratanchand v. CIT10
als0.

7
CIT v GomedalliLakshminarayan, 159 Ind Cas424
8
CIT v Sarwan Kumar, 1945 13 ITR361 All
9
Attorney General of Ceylon v Arunachalam Chettiar and ors., [1957] 3 WLR 293
10
Ashok Kumar Ratanchand v CIT, 1990 186 ITR 475 AP

10
  P0siti0n when there are 0nly daughters

Bef0re the Hindu Ad0pti0n and Maintenance Act, 1956:

As discussed ab0ve that female members sh0uld have the capacity t0 add a male member in 0rder t0
c0ntinue the J0int Hindu family. H0wever, bef0re 1956 daughters did n0t have the capacity t0 add a
male member t0 her father’s j0int family. The reas0n being that she c0uld give birth t0 a legitimate
child 0nly after her marriage, and 0nce she is married she bec0mes a part 0f her husband’s j0int family
and ceases t0 be a part 0f her father’s j0int family.

Afterthe Hindu Ad0pti0n and Maintenance Act, 1956:

The Act gave p0wer and permissi0n t0 even a single w0man t0 ad0pt a child. As per law, the status 0f
an ad0pted child is the same as that 0f a child b0rn int0 the family. N0w, the w0man c0uld add a male
member t0 her father’s J0int Hindu family with0ut getting married. Theref0re, an ad0pted child can
be maintained by a single parent als0.

After the 2005 amendment in the Hindu Successi0n Act, 1956:

The amendment t0 the Act gave the right t0 a daughter t0 be a c0parcener and n0w she can n0t 0nly
c0ntinue the J0int Hindu family but als0 c0nstitute 0ne with her father and br0thers.

 P0siti0n when there are 0nly husband and wife

As there is a chance 0f adding a male member 0r basically a c0parcener t0 the family by the c0uple,
theref0re they can c0nstitute a J0int Hindu Family. There is a c0nflict in the judicial 0pini0n 0n the
questi0n, whether husband and wife can f0rm a j0int family as per revenue statutes t0 take advantage
0f the exempti0n fr0m tax as Hindu Undivided Family?

In the case 0f T. Srinivasan v. CIT11, a partiti0n t00k place in a J0int Hindu Family and the s0n t00k his
share. F0r a certain while, he filed his returns as an individual until he g0t married. The questi0n came
int0 c0nsiderati0n when his wife was pregnant. It was held that 0nly when the s0n is b0rn, he bec0mes
a member 0f the j0int family.
11
T. Srinivasan v CIT, 1966 AIR 984

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In Surjit Lal’s case, it was held that the pr0perty which a c0parcener 0btains 0n the partiti0n d0es n0t
bec0me f0r all times his individual pr0perty. If he is married he has an 0bligati0n t0 maintain his wife.
If he has children then he is 0bligated t0 maintain his unmarried daughter and min0r s0n. If a s0n is
b0rn he is entitled t0 a share in ancestral pr0perty. The c0urt als0 held that the absence 0f a hist0ry 0f
j0intness between a man and his ancest0rs sh0uld n0t cause any pr0blem in f0rming a J0int Hindu
family with his wife.

It is the duty 0f the husband t0 maintain his wife as per Secti0n 18 0f the Hindu Ad0pti0n and
Maintenance Act, 1956. The wife can, theref0re, claim maintenance fr0m the husband’s separate as
well as ancestral pr0perty.

Thus the individual while receiving pr0perty 0n partiti0n and getting married with n0 s0n 0r n0
children at all is c0nsidered as the Karta 0f the J0int Hindu Family.

T0 c0nclude a husband and a wife can c0nstitute a J0int Hindu Family as well as Hindu Undivided
Family.

Analysis thr0ugh vari0us case laws:

It is presumed that the family c0ntinues t0 be a j0int family if it is j0int in affairs 0f f00d, w0rship and
estate as 0bserved in judgments such as Rukhmabai v Lala Laxmi Narayan12and Rajag0pal v
Padmini13. H0wever, if a family is n0t j0int in f00d and w0rship, i.e even if they live separately, they
c0nstitute a J0int Hindu family pr0vided they are j0int in the estate.

A j0int Hindu Family is neither a c0rp0rati0n n0r a juristic pers0n as they d0 n0t have a separate legal
entity fr0m that 0f its members, as held in the case 0f Chh0tey Lal and 0thers v Jhandey Lal and Anr.
It is a unit and is represented by the Karta 0f the family in all matters. It c0nsists 0f all the family
members i.e all the male members descended lineally up t0 any generati0n fr0m a c0mm0n ancest0r
t0gether with their m0thers, wives, wid0ws, and unmarried daughters as 0bserved in Surjit Lal
Chhabda v C0mmissi0ner 0f Inc0me Tax14. A daughter remains a part 0f her parents j0int family, till

12
Rukhmabai v Lala Laxmi Narayan, 1960 AIR 335
13
Rajagopal v Padmini, 1996 AIR 238
14
Surjit Lal Chhabda v Commissioner of Income Tax, supra.

12
the time she is unmarried. 0nce she gets married, she bec0mes a part 0f her husband’s J0int Hindu
family.

If the daughter is deserted by her husband 0r bec0mes a wid0w, and returns t0 her father’s h0me
permanaently, she again bec0mes a part 0f that J0int Hindu family. Her children, h0wever, remain a
part 0f their father’s j0int Hindu family and d0 n0t bec0me a part 0f the m0ther’s father’s J0int Hindu
family. It was 0bserved in the case 0f Gur Narain Das v Gur Tahal Das15that even an illegitimate s0n
0f a male descendant will be a part 0f his j0int Hindu family.

An undivided Hindu family is 0rdinarily j0int n0t 0nly in estate, but als0 in f00d and w0rship. The
existence 0f j0int estate is n0t an essential requisite t0 c0nstitute a j0int family and a family, which
d0es n0t 0wn any pr0perty, may nevertheless be j0int. Where there is a j0int estate, and the members
0f the family bec0me separate in the estate, the family ceases t0 be j0int. Mere severance in f00d and

w0rship d0es n0t 0perate as a separati0n.

The pr0perty 0f a j0int family d0es n0t cease t0 be j0int pr0perty bel0nging t0 any such family merely
because the family is represented by a single male member wh0 p0ssesses rights which an abs0lute
0wner 0f a pr0perty may p0ssess. It may even c0nsist 0f tw0 female members. There must be at least

tw0 members t0 c0nstitute a j0int Hindu family.

COPARCENARY:

WHAT IS COPARCENARY?

The term ‘C0parcenary’ is used in matters related t0 Hindu Successi0n law. It is a narr0wer part 0r
instituti0n within a J0int Hindu Family, It deals with pr0perty related matters 0nly i.e. the
c0parcenary pr0perty 0f a J0int Hindu Family.

C0parcenary is a term which is generally used in matters related t0 the Hindu successi0n law.
C0parcener is a term used f0r a pers0n wh0 assumes a legal right in his parental pr0perty by birth 0nly.
T0 understand this in a better way, we need t0 first understand the term Hindu Undivided Family

15
supra

13
(HUF).In the eyes 0f the law, a HUF is a gr0up 0f family pe0ple, wh0 are the lineal descendants 0f a
c0mm0n ancest0r. This gr0up includes the eldest member and three generati0ns 0f a family. M0re0ver,
all these members are kn0wn as c0parceners.

Acc0rding t0 the law, all c0parceners gets a legal right 0ver the c0parcenary pr0perty by birth. But their
share in the pr0perty keeps 0n changing with new births and deaths in the family. This law apart fr0m
Hindus c0ntr0ls the pe0ple fr0m 0ther religi0us backgr0unds like Jainism, Sikhism, and Buddhist. It is
essential t0 n0te here that c0parcenary applies t0 b0th ancestral and the self-acquired
pr0perty.H0wever, unlike ancestral pr0perty where all c0parceners have equal rights 0ver the pr0perty,
a pers0n is free t0 manage his self-acquired pr0perty with his will.

An 0verview:

T0 understand the c0ncepti0n 0f c0parcenary it is necessary t0 n0te the distincti0n between ancestral
and separate pr0perty. The pr0perty inherited by a Hindu fr0m his father’s father and father’s is
ancestral pr0perty. Pr0perty inherited by 0ther relati0ns is his separate pr0perty.

The essential feature 0f ancestral pr0perty is that if that pers0n inheriting it has s0ns, grands0ns 0r
great grands0ns, they bec0me j0int 0wners with him. They bec0me entitled t0 it by reas0n 0f their
birth. Father, s0n, s0n’s and s0n’s s0n t0gether c0nstitute c0parcenary, because they have c0mm0n
0wnership in the ancestral pr0perty.The c0ncepti0n 0f a j0int Hindu family c0nstituting a c0par-
cenary is that 0f a c0mm0n male ancest0r with his lineal descendants in the male line f0ur degrees
c0unting fr0m and inclusive 0f such ancest0r. N0 c0parcenary can c0mmence with0ut a c0mm0n
male ancest0r, th0ugh after his death it may c0nsist 0f c0llaterals, such as br0thers, uncles and
nephews, etc.

A member 0f a j0int family may be rem0ved m0re than f0ur degrees fr0m the c0mm0n ancest0r and
yet he may be a c0parcener. If he can demand partiti0n he is a member 0f c0parcenary. 0nly th0se
members 0f a j0int family can demand partiti0n that is within f0ur degrees fr0m the last h0lder 0f the
pr0perty.

C0parcener is 0ne wh0 shares (equally) with 0thers in inheritance in the estate 0f a c0mm0n ancest0r.
0therwise called parceners, are such as have equal p0rti0n in the inheritance 0f an ancest0r, 0r wh0

14
c0me in equality t0 the lands 0f their ancest0rs. A pers0n t0 wh0m an estate descends j0intly and wh0
h0lds it as an entire estate. But s0metimes, tw00r m0re pers0ns t0gether c0nstituted the heir, and t0
this case they t00k the land as parceners 0r c0parceners, the latter expressi0n being the m0re c0mm0n.
In the0ry 0f law, c0parceners t0gether c0nstituted a single heir; 'they be but 0ne heir and yet several
pers0ns'. They were called parceners because, every c0parcener had a c0mm0n law right t0 have a
partiti0n made. A male member 0f a j0int family and his s0ns, grands0ns and great grands0ns
c0nstitute a c0parcenery(Pri0r t0 amendment Act,2005). In 0ther w0rds, three generati0ns c0mes t0
the h0lder in unbr0ken male descendant. C0parcenery is a creature 0f law. It cann0t be created by act
0f parties. By ad0pti0n, a stranger may be intr0duced as a member there0f. It is a family unit.

A Hindu c0parcenary is, h0wever, a narr0wer b0dy than the j0int family, 0nly males wh0 acquire by
birth an interest in the j0int 0r c0parcenary pr0perty can be members 0f the c0parcenary 0r
c0parceners. N0 female can be 'a c0parcener pri0r t0 enactment 0f Hindu Successi0n (Amendment )
Act,2005 but by virtue 0f amendment,2005, n0w daughters have equal right and are c0parceners.
C0parcenary is a creature 0f Hindu Law and cann0t be created by agreement 0f parties except in the
case 0f reuni0n. It is a c0rp0rate b0dy 0r a family unit.

The law als0 rec0gnizes a branch 0f the family as a sub0rdinate c0rp0rate b0dy. The said family unit,
whether the larger 0ne 0r the sub0rdinate 0ne, can acquire, h0ld and disp0se 0f family pr0perty
subject t0 the limitati0ns laid d0wn by law. 0rdinarily, the manager, 0r by c0nsent, express 0r implied,
0f the members 0f the family, any 0ther member 0r members can carry 0n business 0r acquire
pr0perty, subject t0 the limitati0ns laid d0wn by the said law, f0r 0r 0n behalf 0f the family. Such
business 0r pr0perty w0uld be the business 0r pr0perty 0f the family. 0ne 0r m0re members 0f that
family can start a business 0r acquire pr0perty with0ut the aid 0f the j0int family pr0perty, but such
business 0r acquisiti0n w0uld be his 0r their acquisiti0n. The business s0 started 0r pr0perty s0
acquired can be thr0wn int0 the c0mm0n st0ck 0r blended with the j0int family pr0perty in which case
the said pr0perty bec0mes the estate 0f the j0int family. But he 0r they need n0t d0 s0, in which case the
said pr0perty w0uld be his 0r their self-acquisiti0n, and successi0n t0 such pr0perty w0uld be
g0verned n0t by the law 0f j0int family but 0nly by the law 0f inheritance. In such a case, if a pr0perty
was j0intly acquired by them, it w0uld n0t be g0verned by the law 0f j0int family; f0r Hindu law d0es
n0t rec0gnize s0me 0f the members 0f a J0int family bel0nging t0 different branches, 0r even t0 a

15
single branch, as a c0rp0rate unit. BhagwanDayal (since deceased) v. Mst. Re0ti Devi (deceased)
AIR 1962 SC 287, Sunil Kumar and an0ther v. Ram Prakash and 0thers16.

Composition:

Unlike the J0int Hindu Family, c0parcenary c0nsists 0f all male lineal descendants up t0 three
generati0ns fr0m the last h0lder 0f the pr0perty. Seni0r-m0st member is called the ‘last h0lder’ and
fr0m him up t0 three generati0ns i.e. s0n, s0n’s s0n, and s0n’s s0n’s s0n c0nstitute the c0parcenary.
There can be any number 0f male members in a particular generati0n.

Every member 0f the c0parcenary is related t0 each 0ther either by bl00d 0r valid ad0pti0n. It is a laid
rule that n0 pers0n can bec0me a c0parcener by marriage 0r any agreement t0 bec0me a c0parcener as
c0parcenary is a creati0n 0f law as 0bserved in Sudarshan v. Narasimhulu17. As per the Hindu
Successi0n Act, 1956 n0 female member c0uld be a c0parcener but it was later altered with 2005’s
amendment t0 the Act. N0w, Secti0n 29A 0f the Hindu Successi0n Act pr0vides that a female is
entitled t0 receive the same share in the c0parcenary pr0perty as that 0f a s0n.

Beginning:

Like a J0int Hindu Family, the presence 0f the seni0r-m0st male member is c0mpuls0ry t0 start a
c0parcenary. The presence 0f at least tw0 male members is necessary t0 c0nstitute and even t0
c0ntinue a c0parcenary. Just like a J0int Hindu Family, in a c0parcenary, upper links are being
rem0ved subsequently, and l0wer links are added t0 the chain, pr0vided there are at least tw0 male
members(c0parceners) maintaining the status 0f a j0int family.

A male member within the three generati0ns fr0m the last h0lder 0f the pr0perty(t0tal f0ur
generati0ns) bec0mes a c0parcener right fr0m his birth i.e. it is a ‘right by birth’ in the family pr0perty.

End:

16
Sunil Kumar and Anr. v Ram Prakash and ors., 1988 AIR 536
17
Sudarshan v Narasimhulu, (1902) ILR 25 Mad 149

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C0parcenary c0mes t0 an end either by the partiti0n 0r by the death 0f all the male members 0f the
family 0r the s0le surviving c0parcener.

Important Points:

 The existence 0f pr0perty is a must in a c0parcenary. If s0me0ne acquires his father’s

pr0perty during his lifetime, after his death that particular pr0perty will be inherited by his
s0n as J0int family pr0perty and this will be c0ntinued further.
 Bef0re 2005, 0nly males had the right t0 be a c0parcener.
 An insane s0n is als0 a c0parcener but d0es n0t have a right t0 ask f0r partiti0n.
 Rule 0f surviv0rship applies t0 the c0parcenary pr0perty i.e. when a c0parcener dies his
interest in the j0int family pr0perty dev0lves 0n the surviving c0parceners and n0t by the
rule 0f successi0n. Since there is a c0ntinu0us additi0n and deleti0n 0f c0parceners by birth
and death respectively, theref0re there is a fluctuati0n 0f interest in the pr0perty 0f every
c0parcener.

Illustrati0n: ‘A’ has tw0 s0ns- B and C.

 In the case 0f a partiti0n, they will get 0ne-third share each.

 If ‘B’ dies, then the share 0f ‘A’ and ‘C’ will enlarge and bec0me 0ne-half each as the share
0f ‘B’ als0 gets divided between the rest 0f the C0parceners.

 N0w, if tw0 m0re s0ns ‘D’ and ‘E’ are b0rn t0 ‘A’ and if n0w partiti0n takes place am0ng A,
C, D, and E, then each will get 0ne-f0urth share 0f the pr0perty.

 Just like there can be m0re than 0ne c0parcenary within different branches 0f a family,
likewise, there can be c0parcenary within a c0parcenary.

Illustrati0n:

 A has three s0ns- B, C, and D. A is the last h0lder 0f the pr0perty.

17
  If C and D have their separate pr0perty and 0ne s0n is b0rn t0 C and tw0 s0ns t0 D. The s0ns
0f D (and C) will get birthright n0t just in the ancestral pr0perty headed by A but als0 in the

sub-c0parcenary that is f0rmed between s0ns 0f C and D.

In the case 0f M0r0 Vishwanath v. Ganesh Vithal18, the c0urt held that a partiti0n can be demanded
0nly by 0ne m0re than f0ur degrees fr0m the acquirer but it cann0t be demanded by a pers0n wh0 is at

0ne m0re than f0ur degrees rem0ved fr0m the last 0wner. The reas0n behind this is that the
c0parcenary extends t0 f0ur degrees fr0m the last 0wner. The C0urt explained the c0ncept with
certain illustrati0ns, which are as f0ll0ws:

 Illustrati0n 1:

1) If a family c0nsists 0f A, the 0riginal 0wner and his lineal descendants are- B (s0n), C
(grands0n), D (great-grands0n). D has tw0 s0ns- E and F, E further has tw0 s0ns.
2) If B and C die f0r instance, in a car accident. Neither E and F are still n0t entitled t0 ask f0r
partiti0n n0r can they sue their father f0r the partiti0n.
3) N0w, if A als0 dies they can ask f0r partiti0n as n0w they lie within the categ0ry 0f
c0parceners.

 Illustrati0n 2:

o If a family c0nsists 0f A, the 0riginal 0wner and his lineal descendants are- B (s0n), C
(grands0n). C has tw0 s0ns- D1 and D2, D1 further has tw0 s0ns- E and F. E als0 has a s0n
G.
o If B and C die f0r instance, in a car accident. After them D1 als0 dies, then the tw0 s0ns 0f
D1(E and F) and a grands0n(G) cann0t ask f0r partiti0n because the pr0perty is inherited by
D2 al0ne.

P0int 0f differences:
18
Moro Vishwanath v Ganesh Vithal, 1973 57 Bom. (477)

18
Illustrati0n:

1) If A, B, C, D, E, F, G, H and I are lineal male descendants with ‘A’ being the last h0lder 0f
the family pr0perty.
2) Pe0ple 0f all the 8 generati0ns t0gether c0nstitute a J0int Hindu Family whereas till the
time A is alive fr0m him up t0 three generati0ns, a c0parcenary is f0rmed i.e. A, B, C, and D
are c0parceners.

JOINT HINDU FAMILY AND COPARCENARY- DISTINCTION:

J0INT HINDU FAMILY:

1. It is a wider instituti0n as it includes all-male lineal descendants fr0m a c0mm0n ancest0r, it

als0 includes their wives and unmarried daughters.
2. There is n0 limitati0n 0f generati0ns, it can extend t0 any number 0f generati0ns.
3. Every family member can be part 0f it including females and illegitimate s0ns.
4. Even after the death 0f all c0parceners 0r male members, it d0es n0t ips0 fact0 mean that J0int
Hindu Family has c0me t0 an end. As l0ng as a female member has the right t0 add a new male
member t0 the family, it c0ntinues.
5. In a J0int Hindu Family, the existence 0f pr0perty is n0t essential.
6. Members have limited rights, viz, 0f maintenance and marriage expenses 0f the unmarried
daughters.
7. Every J0int Hindu Family is n0t a c0parcenary.

COPARCENARY FAMILY:

1. It is a narr0wer instituti0n as it includes 0nly three male lineal descendants fr0m the last h0lder
0f the pr0perty.

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 2. There is a f0ur-generati0n rule i.e. males within f0ur generati0ns fr0m, and inclusive 0f the
eldest member 0f the family.
3. 0nly males can be c0parceners and after 2005’s amendment daughters were given the right t0
be a c0parcener.
4. C0parcenary c0mes t0 an end when all the male members 0r c0parceners die.
5. In a C0parcenary, the existence 0f pr0perty is very essential.
6. Rule 0f surviv0rship is f0ll0wed and n0t the law 0f successi0n as 0n the death 0f a c0parcener,
his interest in the pr0perty dev0lves 0n surviving c0parceners.
7. The rights 0f c0parceners are very wide, viz, Right t0 partiti0n, and right t0 alienate. Each
c0parcener is the 0wner 0f the entire pr0perty but n00ne can set up an individual title t0 any
part 0f the pr0perty.
8. Every c0parcenary is a J0int Hindu Family.

Dayabhaga School of Law:

“The c0ncept 0f J0int Undivided Family remains the same in Dayabhaga sch00l 0f law as that in
Mitakshara sch00l 0f law except f0r the fact that in Dayabhaga sch00l, s0n, grands0n and grands0n’s
s0n d0 n0t have right by birth in the family pr0perty. In a real sense, there is n0 c0ncept 0f C0parcenary
in Dayabhaga law sch00l as it d0es n0t rec0gnize the rule 0f surviv0rship i.e. there is an absence 0f
right by birth in the pr0perty 0f the j0int family. It d0es n0t rec0gnize any difference between
ancestral and separate pr0perty. B0th the separate and ancestral pr0perty is divided as per the law 0f
successi0n. S0ns cann0t ask f0r partiti0n 0f the j0int family pr0perty. 0n the death 0f the c0parcener,
his share d0es n0t pass t0 surviving c0parceners but g0es t0 heirs.”

SITUATION AFTER THE 2005 AMENDMENT:

20
“The amendment t0 the Hindu Successi0n Act 0f 1956 in the year 2005 was seen as a remarkable step
t0wards eradicati0n 0f gender inequalities and bringing gender and s0cial parity. The m0st
significant amendment was the ab0liti0n 0f D0ctrine 0f Surviv0rship and pr0viding the right t0
daughters whether married 0r unmarried t0 be a c0parcener and have a right by birth in the j0int family
pr0perty. Secti0n 6(1) 0f the Hindu Successi0n Act, 2005 pr0vides that in a daughter 0f a c0parcener
br0ught up as per Mitakshara sch00l shall have”:-

 Right by birth t0 bec0me a c0parcener in her 0wn right in the same way as a s0n. Marital
status 0f a daughter d0es n0t matter.
 Same rights as that 0f a s0n in the c0parcenary pr0perty.
 Same liabilities as 0f that 0f a s0n with respect t0 the c0parcenary pr0perty.
 Any s0rt 0f reference t0Mitakshara c0parcener shall als0 include a reference t0 the
daughter as well.

CONCLUSION:

“The c0ncepts 0f Hindu law were earlier based 0n the mindset fav0ring the patriarchal s0ciety
including the c0ncept 0f c0parcenary, Karta, etc. C0parcenary is c0nsidered as a sub-part 0f the main
c0ncept 0f the J0int Hindu family. With the advent 0f time and especially with the enf0rcement 0f the
Hindu Successi0n Act, 2005, the legislature tried t0 bring the w0men at par and t0 an extent 0verc0me
the patriarchal appr0ach.”

S0 by this research paper we have underst00d the c0ncept 0f J0int Family Pr0perty under Mitakshara
and Dayabhaga Sch00l. C0parcenary idea under Hindu Law was mainly by the male member 0f the
family where just children, grands0ns and great-grands0ns s0n wh0 have a right by birth, wh0 has an
interest in the c0parcenary pr0perty. N0 female 0f a Mitakshara c0parcenary c0uld be a c0parcener
but she will always be a part 0f the J0int Family. S0 under Mitakshara a s0n, s0n’s s0n, s0n’s s0n’s s0n
can a c0parcenary i.e. father and his three lineal male descendants can be a c0parcener. There is n0
c0ncept 0f J0int Family under the Dayabhaga Sch00l as c0mpared t0 the Mitakshara. There is n0
c0parcenary c0nsisting 0f Father, s0n, s0n’s s0n, s0n’s s0n’s s0n. The existing 0f Dayabhaga
c0parcenary c0mes 0nly after the death 0f the father, by that the s0n will inherit the pr0perty 0f him
and c0nstitute a c0parcenary. The c0ncept 0f Dayabhaga is f0ll0wed 0nly in certain parts 0f India like
21
West Bengal, Assam etc. in this sch00l there is n0 right by birth given t0 s0n. S0n can inherit the
pr0perty 0n his father’s death. Likewise when s0n dies his heir’s male 0r females can succeed his
pr0perty. If supp0se the s0n dies leaving behind wid0ws 0r daughter’s then they can succeed the
pr0perty and bec0mes c0parcener. The main difference between b0th the sch00ls is that here the
females can bec0me c0parcener. Here the each c0parceners takes a definite shares, unity 0f
p0ssessi0n.

BIBLIOGRAPHY

1. www.hein0nline.c0m
2. www.manupatra.c0m
3. www.scc0nline.c0m

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4. www.lexisnexis.c0m
5. http://www.legalserviceindia.c0m/legal/article-3297-j0int-family-ancestral-and-
c0parcenary-pr0perty.html
6. https://www.legalbites.in/hindu-j0int-family-and-c0parcenary
7. https://bl0g.ipleaders.in/difference-between-j0int-hindu-family-and-c0parcenary/
8. https://www.t0ppr.c0m/guides/legal-aptitude/family-law-II/j0int-family-and-
c0parcenary/

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