Beruflich Dokumente
Kultur Dokumente
Submitted To:
Dr. Jai Mala
Submitted By:
Harkiran Singh Brar 87/10 IVth Semester
Coparcenary
ACKNOWLEDGEMENT
I owe a great many thanks to a great many people who helped and supported me during the writing of this project. My deepest thanks to my Family Law Lecturer, Dr. Jai Mala, the Guide of the project for guiding me and correcting various documents of mine with attention and care. She has taken pain to go through the project and make necessary corrections as and when needed. I would also thank my Institution and my faculty members without whom this project would have been a distant reality. I also extend my heartfelt thanks to my family and well-wishers.
Coparcenary
TABLE OF CONTENTS
JOINT HINDU FAMILY ....................................................................................................................... 4 COPARCENARY ................................................................................................................................... 5 GENESIS OF COPARCENARY ....................................................................................................... 7 INCIDENTS OF COPARCENARY ................................................................................................... 8 DIFFERENCE BETWEEN JOINT HINDU FAMILY AND COPARCENARY .............................. 8 DAYABHAGA SCHOOL ON COPARCENARY ............................................................................ 8 COPARCENERs RIGHTS ................................................................................................................ 9 COPARCENARY WITHIN COPARCENARY ................................................................................ 9 COPARCENARY PROPERTY ........................................................................................................... 10 CHARACTERISTICS OF THE COPARCENARY PROPERTY ....................................................... 10 ELEMENTS OF A COPARCENARY PROPERTY ........................................................................ 10 COPARCENERS POWER OF ALIENATION .............................................................................. 11 SALE AND MORTAGE .................................................................................................................. 11 SOLE SURVIVING COPARCENER .............................................................................................. 11 THE AMENDMENT OF 2005 IN THE HINDU SUCCESSION ACT ............................................... 12 BIBLIOGRAPHY ................................................................................................................................. 13
A Hindu Joint family consists of the common ancestor and all his lineal male descendants upto any generation together with the wife or wives (or widows) and unmarried daughters of the common ancestor and of the lineal male descendants. The existence of the common ancestor is necessary for bringing a Joint family into existence, for its continuance common ancestor is not a necessity.1 According to Sir Dinshah Mulla, A Joint Hindu family consists of all persons lineally descended from a common ancestor, and includes their wives and unmarried daughters. A daughter ceases to be a member of her father's family on marriage, and becomes a member of her husband's family.2 A Joint and undivided family is the normal condition of Hindu society. An undivided Hindu family is ordinarily Joint not only in estate, but also in food and worship. The existence of Joint estate is not an essential requisite to constitute a Joint family and a family, which does not own any property, may nevertheless be Joint. Where there is joint estate, and the members of the family become separate in estate, the family ceases to be Joint. Mere severance in food and worship does not operate as a separation.3 The property of a Joint family does not cease to be Joint family property belonging to any such family merely because the family is represented by a single male member who possesses rights which an absolute owner of a property may possess. It may even consist of two females members. There must be at least two members to constitute Joint Hindu family. A single male or female cannot make a Hindu Joint family even if the assets are purely ancestral.4 In Narendranath v. Commissioner of Wealth Tax,5 the Supreme Court held that the expression 'Hindu undivided family' in the wealth Tax Act used in the sense in which a Hindu Joint family is understood in the personal law of Hindus and a Joint family may consist of a single male member and his wife and daughters and there is nothing in the scheme of the Wealth Tax Act to suggest that a Hindu undivided family as assessable unit must consist of a least two male members. In Commissioner of Income Tax v. Gomedalli Lakshminarayan,6 there was a Joint family consisting of a father and his wife and a son and his wife, the son being the present assesse. On the death of father the Question raised is whether the assesse is to be assessed as an individual or as a member of the Joint Hindu family, It was held that the son's right over the
1
Extract From Online Family Law II Notes, Visited on February 23, 2012 at <http://mayanklawnotes.blogspot.in/2007/01/family-law-ii.html>
2 3
Coparcenary
property is not absolute because two females in the family has right of maintenance in the property, therefore the income of the assesse should be taxed as the income of a Hindu undivided family.7 In Anant v. Shankar,8 it was held that on the death of a sole surviving coparcener, a Hindu Joint Family is not finally terminated so long as it is possible in nature or law to add a male member to it. Thus there can also be a Joint family where there are widows only.9
COPARCENARY
A species of estate, or tenancy, which exists where lands of inheritance descend from the ancestor to two or more persons. It arises in England either by common law or particular custom. By common law, as where a person, fee-tail, dies, and his next heirs are two or more females, his daughters, sisters, aunts, cousins, or their representatives; in this case they all inherit, and these coheirs are then called coparceners.10 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.11 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 been included 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.12 All other property is included under separate property.13 Though every coparcenary must have a common ancestor to start with, it is not to be supposed that every extant coparcenary is limited to four degrees from the common ancestor. When a member of a joint family is removed more than four degrees from the last holder, he cannot demand a partition, and therefore he is not a coparcener. On the death, however, of the last holder, he would become a member of the coparcenary, if he was fifth in descent from him and would be entitled to a share on partition, unless his father, grandfather and greatgrandfather had all predeceased the last holder. Whenever a break of more than three degrees
7 8
Supra Note 1 (1944) 46 BOMLR 1 9 Supra Note 7 10 Definition of Coparcenary at Blacks Online Dictionary, Visited on February 23, 2012 at <http://blackslawdictionary.org/coparcenary/> 11 Surjith Lal Chhaabda v. CIT Bombay AIR 1976 SC 109 12 Sundar Lal v. Chhittar Mal (1907) 29 All 1 13 Gautam Jayasurya, Testamentary Disposition of Coparceners, Visited on February 23, 2012 at <http://scribd.com>, p.4
Coparcenary
occurs between any holder of property and the person who claims to enter the coparcenary after his death the line ceases in that direction and the survivorship is confined to those collaterals and descendants who are within the limit of four degrees.14 In Ceylon- Attorney-General of Ceylon v. A. R. Arunachalam Chettiar,15 case a father and his son constituted a joint family governed by Mitakshara School of Hindu Law. The father and the son were domiciled in India and had trading and other interests in India. The undivided son died and father became the sole surviving coparcener in a Hindu Undivided family to which a number of female members belonged. In this the court said that the widows in the family including the widow of the predeceased son had the power to introduce coparceners in the family by adoption and that power was exercised after the death of son.16 In Gowli Buddanna v. Commissioner of Income-Tax Mysore,17 a family consisting of father, his wife, his two unmarried daughters and his adopted son. After the death of father question arises whether the sole male surviving coparcener of the Hindu joint family, his widowed mother and sisters constitute a Hindu undivided family within the meaning of the Income tax Act? In this case it was held by the court property of a joint family does not cease to belong to the family merely because the family is represented by a single coparcener who possesses rights which an owner of property may possess. The property which yielded the income originally belonged to a Hindu undivided family.18 In Moro Vishwanath v. Ganesh Vitthal,19 plaintiffs and defendants are descendants of one Udhav. The defendants are all fourth in descent from him. The plaintiffs, however are, some fifth, and others sixth in descent from him. The question, however, whether, assuming them to be undivided, the plaintiffs are entitled to sue at all for a partition according to Hindu Law, is one of considerable importance and difficulty. It was urged that Plaintiffs cannot claim from the defendants any partition of property descended from that common ancestor. It was held that upon a consideration of the authorities cited, it seems to me that it would be difficult to uphold the appellants' contention that a partition could not, in any case be demanded by descendants of a common ancestor, more than four degrees removed, of property originally descended from him.20
14 15
Supra Note 9 [1967] 63 ITR 458 (SC) 16 Supra Note 14 17 AIR 1966 SC 1523 18 Supra Note 16 19 AIR 1958 MP 304 20 Supra Note 18
Coparcenary
GENESIS OF COPARCENARY
21
A Hindu male A, with self-acquired property without the help or financial support of his ancestors has a son B. B with his three sons or daughters C, D and E and with their children F, G and K. The main family will constitute the above mentioned members i.e. up to four generations. I, J and K constitute branch families. All these families have one common ancestor A. On the death of A, I and J will be added to the coparcenary. On As death the self-acquired property of A during As lifetime is inherited by B. Bs three children C, D and E takes a vested interest in the property by reason of birth. This property inherited by B will become ancestral property in Bs hands. After the death of A, his children C, D and E and their children F, G and H are coparceners as regards the property.22 It is to be noted that coparcenary is not always limited to four degrees from common ancestor. A member of a joint family may be removed more than four degrees from common ancestor, and yet he may be a coparcener. But the rule states that partition can only be demanded by any member of a joint family, who is not removed more than four degrees from the last holder. On the death, however of the last holder, he would become a member of the coparcenary, if he was fifth in descent and would be entitled to a share in the partition. Whenever a break of more than three degrees occurs between any holder of the property and the person who claims to enter the coparcenary after his death, the line ceases in that direction.23
21
Table showing the illustration of a coparcenary in the Hindu family, Visited on February 23, 2012 at <http://www.payer.de/dharmashastra/dharma0915.gif > 22 Supra Note 13, p.5 23 Ibid
The lineal male descendants of a person upto the third generation, acquire on birth ownership in the ancestral properties of such person. Such descendants can at any time work out their rights by asking for partition. Till partition each member has got ownership extending over the entire property conjointly enjoyment of the properties is common. As a result of such co-ownership the possession and enjoyment of the properties is common. No alienation of the property is possible unless it is for necessity, without the concurrence of the coparceners. The interest of a deceased member passes on his death to the surviving coparceners.24
Every coparcener and every other member of the joint family has a right of maintenance out of the joint family property. The right of maintenance subsists through the life of the member so long as family remains Joint. No female can be a coparcener under Mitakshara law. Even wife, though she is entitled to maintenance.25
Coparcenary
Dayabhaga law could thus consist of males as well as females. Every coparcener takes a defined share in the property, and he is owner of that share. It does not fluctuate with birth and deaths in family.27
COPARCENERs RIGHTS
Right of joint Ownership Right of joint Possession, enjoyment and use of joint family property Right of Survivorship Right of Alienation of undivided interest Right to Challenge an improper Alienation made by the Karta Right of Maintenance Right to Partition28
Example: a coparcenary consists of A and his three sons B, C and D and two sons of C, CS and CS1 and three sons of D, DS, DS1 and DS2, C and D acquire separate properties and die. CS and CS1 inherit the separate property of C and between themselves constitute a coparcenary. DS, DS1 and DS2 inherit Ds separate properties and constitute a coparcenary headed by A two sub-coparcenaries come into existence. If sons are born to CS, CS1 or DS, DS1 and DS2 they will get a birth right not merely in the coparcenary headed by A but also in their respective sub-coparcenaries.29
27 28
Ibid Vijender Kumar, Hindu Law of Coparcenary And Its Composition, Visited on February 23, 2012 at <http://scribd.com> , p.40 29 Ibid
10
Although the preamble to the Hindu Succession Act declares that the act amends and codifies Hindu law of intestate succession, yet third chapter deals with the testamentary succession not impliedly but boldly and to some extends radically. The effect of this provision is that when a person bequeaths his or her property by will, the succession under the act is excluded and the property passes to the testamentary heirs.30 Where a Hindu dies after the commencement of the Amendment Act 2005, his interest in the property of the joint Hindu family governed by the Mitakshara Law shall devolve by testamentary or intestate succession and not by survivorship and the coparcenary property shall be deemed to have been divided as if a partition had taken place. Any property to which a female Hindu becomes entitled to under this Amendment Act 2005, shall be a property capable of being disposed of by her by testamentary disposition i.e. by way of Will.31
30 31
Sadhu Singh v. Gurudwara Sahib Narike (2006) 8 SCC 75 Supra Note 22, p.8 32 Ibid
Coparcenary
11
Property acquired by all or any of the coparceners with the aid of joint family funds.33
Ibid., p.9 Madhu Kishwar, From Manusmriti to Madhusmriti Flagellating a Mythical Enemy, The education council on Indian traditions., Visited on February 23, 2012 at <http://www.infinityfoundation.com/ECITmythicalframeset.htm> 35 Supra Note 33, p.10 36 Pandu v. Goma AIR 1919 Bom 84 37 Lakshmi v. Kala AIR 1977 All 509 38 Guramma v. Mallapa AIR 1964 SC 510
Coparcenary
12
coparcener doesnt have the power of alienation, ad if alienation has been made, such a member can challenge the alienation or he may ratify it on attaining majority. This power is not fettered by the contingency of an adoption being made by a widow in the family, a contingency which may operate at all.39
39 40
Supra Note 35, p.16 The SC Judgement dated 12-10-2012 on The Amendment of 2005 in The Hindu Succession Act, 1956, Visited on February 23, 2012 at <http://ecopackindia.wordpress.com/tag/coparcenary/ >
Coparcenary
13
BIBLIOGRAPHY
BOOKS
SHARMA, B.K. Hindu Law, 3rd Edition. Allahabad: Central Law Publications, 2011.
E-ARTICLES
The SC Judgement dated 12-10-2012 on The Amendment of 2005 in The Hindu Succession Act, 1956 at <http://ecopackindia.wordpress.com/tag/coparcenary/> Pramod Singh. Women's Right In Coparcenary Property at < http://leguminfo.com/node/71> Online Family Law II Notes at <http://mayank-lawnotes.blogspot.in/2007/01/familylaw-ii.html> Gautam Jayasurya, Testamentary Disposition of Coparceners at <http://scribd.com> Vijender Kumar, Hindu Law of Coparcenary And Its Composition at <http://scribd.com>