86

Family Law Lectes 7

INCIDENTS OF CoPARCENARY

) Four Generation Rule

third generation (excluding him), acquim
The lineal male descendants of a person, up to
birth an interest in the coparcenary property
held by him.
on

(i) Creation of Law

creation of law and cannot be formed by an
also
Like a joint family, coparcenary is
a

agreement between the parties.

(ii) Only Males

Only a male child," born in the family

No stranger can be introduced in the coparcenary.
or validly adopted, can become a coparcener.

(iv) Acquisition ofInterest by Birth

A coparcener in ajoint family is born with an interest
in the coparcenary property which
means that the moment he is born in the family he gets a right by birth in the ownership
father and his two sons, all three
of the coparcenary property. If the family comprises the
of them have an interest in the coparcenary property. When another son is born, he also
becomes a sharer in the property jointly with the rest of the coparceners by birth.

(v) Unity of Possesion and Community of Interest

One of the basic features of coparcenary is unty of possession and community of
interest.30 All the coparceners jointly own the coparcenary property and till a partition takes
place and their shares are specifically demarcated, no one can claim ownership over any
specific item ofthe coparcenary property. For example, take the case ofa family comprising
the father and his three sons with all of them living along with their wives and children in
the joint family house belonging to the family. The house comprises four bedrooms. Each
brother might be occupying a separate room with common consensus, but this does no
give him a right to call that specific room his exclusive property. It is merely a convenient
arrangement that does not confer an exclusive ownership in their favour of that item or
the propety because the ownership of each of these rooms vests in all the coparcenes
collectively and not individually.

(vi) Fluctuating and Not a Specific Interest

Although a coparcener on birth gets an interest in the coparcenary property, his interest
in the property is not of a specific share and is subject to fluctuation with the deatns
and births of other coparceners in the family. For example, a joint family comprises a
father and two sons. Each of these coparceners is the owner of a probable one-third o
the family property. Where another son is born in the family, the share of each of them
fluctuates and is reduced toa probable one-fourth. On the birth of another son, it
wil
29. For introduction of daughters as coparceners, see infra.
30. Katama Natchier v Rajah of Sivagunga, (1863) 9 Moo Ind App 539.
 Coparcenary 87
again fluctuate and will be further reduced to a probable one-fifth. Similarly, on the
death of a coparcener, it will fluctuate again and will be increased to a possible one-
fourth. The reason why it is called a possible share and not a specific share is that till a
partition takes place the shares can never be called specific shares.3 In a Hindu undivided
family governed by the Mitakshara law, no individual member of the family while it
remains undivided can predicate that he has a certain definite share in the property of
the family. The rights of the coparceners are defined only upon a partition.3" In Kali
Ammal v Valliyammal," it was held that the interest in coparcenary property would be
a fluctuating interest and that would be enlarged by deaths and diminished by births in
the family. Therefore, no
coparcener can predict his exact share whilst the joint family
property remains undivided.

(vii) Collective Enjoyment

The proceeds of undivided family must be brought to the common chest or purse and
then dealt with according to the modes of enjoyment by the members of an undivided
family, as till a partition takes place they hold everything jointly.* Coparcenary property
suggests ownership by one group collectively and enjoyment and possession of it by not
only this group exclusively but also by the joint family members who are outside this group.

(vii) Doctrine of Survivorship

The shares of the coparceners are not specific and are subject to change with the births
and deaths of coparceners in the family. Under the traditional or the classical law, on the
death of a coparcener in the joint family his interest in the
family property is immediately
taken by those coparceners who survive him and thus he leaves nothing behind out of his
interest in the coparcenary property for his female dependants. This phenomenon is called
doctrine of survivorship. On birth he takes an interest, enjoys it during his lifetime but
leaves nothing for his female dependants on his death.

ix) Right to Ask for Partition

In the Mitakshara coparcenary, a major coparcener can at any time ask for partition and
demarcation of his share.36 It is the inherent right of a coparcener and
can be exercised by
him at any time. Where the family members more specifically the Karta do not give in to
his demand, he can exercise the right by filing a suit for a partition in a court of law. A
minor coparcener cannot demand a partition but can file a suit for partition through his next
Triend in a court of law for partition and specification of his share.

1. Appovier v Rama Subba Aiyan, (1886) 11 Moo Ind App 75, 89.
32. Girijanandini Devi v Bijendra Narain Choudhary, AIR 1967 SC 1124; Commissioner of Gifi Tax.

Madras v NS Getty Chettiar AIR 1971 SC 2410.

Kali Ammal v Valliyammal, AIR 2017 (NOC) 211 (Ker).
Appovier v Rama Subba Aiyan, (1866) 11 Moo Ind App 75; State Bank of ndia v Ghamamdi Ram,
AIR 1969 SC 1330, 1333.
Bhaga Pruseth v Purni Devi, AIR 2003 NOC 171 (Ori).
0 Anant Ramrao v Gopal Balvant, (1894) ILR 19 Bom 269
88 Family Law Lectures ll
(x) Aliemation of Undivided Interest
Generally, a coparcener on his own or individually is not entitled to alienate his undivided
interest in the coparcenary property.3" Only in certain specific situations, the father or the
Karta can alienate the undivided interest or even the whole of the property.

DISTINCTION BETWEEN A JOINT FAMILY AND COPARCENAR

A coparcenary is an institution within a joint family and the primary differences between
the two are as follows:
) The joint family is a bigger institution and includes a coparcenary within it
There can be a joint family without a coparcenary, but there can never exist a
coparcenary without a Hindu joint family.
There is no presumption in law that a joint family has any property at al
(ii) However, the concept of coparcenary is presently understood to determine the
rights and obligations of the members of the joint family over the property. This
s the reason why in the joint family the senior most male member is called the
Karta" and for the purposes of coparcenary he is described as the "last holder of
the property".
(ii) Joint family is much broader than the coparcenary and there is no limitation on
that it
the number of members in the joint family or the number of generations
is limited to four generations of
may encompass within it, but a coparcenary
male members only.
(iv) A joint family has both males and females as its members, but coparcenary
could be a
under the classical law comprised only male members and no female
member of the coparcenary.

(v) In a joint family, members can be added by birth, adoption or even by marriage
a member can be added only by
to lineal male descendants. In a coparcenary,
each other by
birth or a valid adoption, i.e., all coparceners must be related to
blood or adoption and no person can become a coparcener by marriage.
(vi) All the members in the joint family do not have equal rights over the joint

family property. Some have only a right to maintenance out of the joint fami
funds ora right of residence in the family house, while others may have a rign
to seek partition and have an interest in the coparcenary property. But in n
coparcenary, all members have an interest in the coparcenary property by bir
and have a right to demand a partition of their interest in this property.
but not members o
(vii) Disqualified coparceners are members of the joint family
even though they may be within
four generations from the
coparcenary
holder of the property and therefore cannot ask for partition of the property.
members male member
may consist of only two
or a
A Hindu
(viii) one or more family members,
jointfemale but for a coparcenary a minimum of two nla
members is must. A single male member is called a sole surviving coparcene

For
can transfer his undivided interest in the coparcenary
property.
37. In certain states a coparcener
details see chapter 8, infra.
38. For details see chapter 8, infru. 1953 AlI 150.
Niwas Nanpara v CI7, AIR
39. Ram Kumar Ram
see chapter l1.
40. For details,