Hindu Law of Coparcenary and

Its Composition

Prof. (Dr.) Vijender Kumar

Professor of Law & Commonwealth Fellow
NALSAR University of Law, Hyd.
vijenderkumar@yahoo.com
 Coparcenary:
 Coparcenary is narrower body of persons
within a joint family, and consists of father,
son, son‟s son, and son‟s son‟s son. Like joint
family, to begin with, it consists of father and
his three male lineal descendants; in its
continuance the existence of the father-son
relationship is not necessary. Thus a
coparcenary can consist of grandfather and
grandson, of course, of uncle and nephew and
so on.
 The rule is that so long as one is not removed
by more than four degrees from the last holder
of the property, one will be a coparcener.
 Common Ancestor

Son Son Son Daughter Daughter

Wife Wife (M)

S S D S D
Wife S – Son
S D – Daughter
S S D D S S
S
Wife M – Married
S S SS S S

S S S
S Wife

S D
S S D

S S S
 Incidents of Coparcenary:

The incidents of coparcenership are:

 A coparcener has an interest by birth in the joint
family property;
 Though until partition takes place this is an
unpredictable and fluctuating interest which may
be enlarged by death and diminished by births in
the family;
 Every coparcener has right to be in joint
possession and enjoyment of joint family property;
 Every coparcener has a right to be maintained
including a right of marriage expenses being
defrayed out of joint family funds.
 Incidents of Coparcenary:

 Every coparcener is bound by the alienation made

by the Karta for legal necessity or benefit of estate
and by the legitimate acts of management of the
Karta;
 Every coparcener has a right to object and
challenge alienations made without his consent or
made without legal necessity; and
 Every coparcener has a right of partition and
survivorship.
 The Dayabhaga Joint Family:

 The joint family is one of the areas where the

Mitakshara and the Dayabhaga differ from each
other fundamentally. In modern law the joint
family is the only area where two schools of
Hindu law still have significance.
 Sons have no right by birth: Strictly speaking
under the Dayabhaga school there is no joint
family between father and son, sons have no right
by birth. Similarly, the sons have no right of
survivorship. Under the Dayabhaga school all
properties, self-acquired as well as coparcenary,
devolve by succession.
 Coparcenary
 There are two principal commentaries which are
known as Mitakshara written by Vijnaneshwara
and Dayabhaga written by Jimutawahan.
 Mitakshara recognised in whole of India except
Bengal and Assam States.
 Dayabhaga recognised in Bengal and Assam
States.
 Coparcenary
 Hindu coparcenary system, with which we are
concerned here, is the law of the Mitakshara laid
down by Vijnaneshwara.
 In spite of the existence of some minor schools
existing in different parts of India, such as
Benares, Mithila, Madras or Dravid, Bombay etc.
so far as the law of coparcenary is concerned, the
Mitakshara prevails throughout India except
Bengal and Assam as well as the Punjab where the
customary law prevails.
 Coparcenary
 In ancient times, the concept of an individual
owning property was unknown.
 The property was owned either by a patriarch or
by the family or by the village community.
 The concept of family ownership got divided into
two schools by reasons of the difference of
opinion or treatment of the subject between the
two leading commentators, viz, Vijnaneshwara
(Mitakshara) and Jimutawahan (Dayabhaga).
 Coparcenary

 The two learned commentators interpreted or

understood the law propounded by the Smritis or
Dharmashastras differently.
 In modern parlance the approach of Mitakshara is
socialistic, while that of Dayabhaga is
individualistic.
 It appears that Mitakshara believed in corporate
ownership of property while Dayabhaga believed
in personal ownership.
 Coparcenary
 As the property, however and whenever acquired,
belonged to the family every male members got a
right to it by birth.
 The exclusion of women from ownership and the
limitation of male ownership to only four degrees
arose due to the custom prevailing in ancient times
and religious considerations.
 A subordinate position was given to women due to
several reasons and religious practices and beliefs.
 Coparcenary
 By the birth of the son, the father goes to heaven;
 By the birth of the grandson, the father goes to
heaven permanently; and
 By the birth of the great-grandson, he (great grand
father) goes to the abode of the Sun+,
 Thereby suggesting that the son has right to the
property of the father even during his life time, in
his absence, the grand-son has such right and in
his absence, the great-grandson has such right.

(Manu, ix, 137.)

 Coparcenary
 The son protects or saves the father from the hell
called “Put” and therefore, he is called “Putra”
that is “Son”. By this, it is suggested that the
father is under the obligation of his son (in as
much as he saves him from hell) and therefore, the
son is entitled to a corresponding right in the
father‟s property by birth. The obligation of the
son arises also out of the son‟s birth.
(Manu, ix, 138)
 Coparcenary
 Oblations should be offered to the deceased father,
grand father and great grandfather. The offerer is
the fourth degree son. The fifth has no right to
offer oblations, which means the son (great grand
son) has the right to offer water and pind (rice-
cake) to his father, grandfather and great grand-
father but the great great grand son (fifth degree
son) has no right to do so.
(Manu, ix,186)
 Coparcenary
 It is because of these reasons that the son was
given a right by birth and this reasonably created
the concept of coparcenary.
 That is why daughter was not given a share in the
coparcenary property as she did not possess the
religious qualifications as of the son.
 Besides under Hindu law, the daughter ceases to
be the member of her paternal family on marriage
and joins and becomes a member of her husband‟s
family.
 Coparcenary
 In a Joint Hindu Family, the male members are
called coparceners or co-sharers in the property of
the Joint Hindu Family.
 The property of the Joint Hindu Family actually
belongs to the coparceners as owners and the
female members that is wives or widows of male
coparceners and unmarried daughters, though
members of the family have only a right to
Maintenance during their life time but so far as
unmarried daughters are concerned until their
marriage whichever is earlier.
 Coparcenary
 Therefore coparcenary is a smaller circle
consisting of only male members, the larger circle
consisting of all the female and male members.
 Coparcenary is an inner cabinet of the Joint
Family capable of holding the joint family
property for themselves and for the benefit of the
other members of the joint family.
 Coparcenary
 Coparcenary is, however, a body limited to the
propositus and his three generations namely his
son, son‟s son and son‟s son‟s son. Further male
descendants, if living, are not members of the
coparcenary and they have only a right to
Maintenance, as members of the joint family.
 Coparcenary
 Therefore, coparcenary has a common ancestor or
propositus and he forms coparcenary with his
sons, grandsons, (son of a deceased son) and great
grandsons (son of deceased son‟s of deceased
son). If „A‟ the propositus dies his sons form the
coparcenary along with his deceased son‟s son or
grandson as the case may be.
 Coparcenary
 At the same time the representative of each
generation among the four, has only a right to
demand partition though there may be others
claiming through him and considered as
coparceners.
 Example: if „A‟ has a son „B‟ and „B‟ has his
sons C and D then so long as „B‟ is living C and
D have no right to claim partition of the
ancestral property and they are coparceners only
within the branch of „B‟ and only when „B‟
separates from „A‟ then C and D can claim
partition of the property coming to the share of
„B‟, or if „B‟ dies then they can claim partition
from „A‟.
 Coparcenary
 Therefore for determining whether a male
member of a Hindu Joint Family is a coparcener
or not, one has to take into account the living
four generations including the common ancestor
or first ancestor; among the living generations,
the first generation is relevant being the
propositor and only the next three generations
will be entitled to claim coparcenary rights and
not the subsequent. Only when the first
generation ceases to exist the fifth generation
will come in and so on.
 Coparcenary
 In short, there is a community of interest and unity
of possession between all the members of the
coparcenary and upon the death of any one of
them the others will take by Survivorship that in
which they had during the deceased‟s life time a
common interest and a common possession.
 Coparcenary
 In other words, the Mitakshara doctrine is that
ownership of property is of the whole of the Joint
Family and no one member or coparcener can
claim ownership of any interest or share in the
property or any part of the property separately
until a partition of the property is effected.
 This is also known as the doctrine of aggregate
ownership of the family property.
Diagram 1
A
Coparcenery
B consists
between A to
C D
D
E
E to H are not
F Coparceners

G
H
Diagram 2
A
Coparcenery
B consists
between B to
C
E
D
E

F
F to H are
G not
coparceners
H
Diagram 3
A
Coparcenery
B consists
between C to
C
F
D
E

F
G G and H are
not
H coparceners
Diagram 4
A
Coparcenery
B consists
between D to
C
G
D
E

F
G
H is not a
H
coparcener
Diagram 5
A
B
C
D
E
Coparcenery
F consists
between E to
G
H
H
Diagram 6
A
Coparcenery
B consists
between A, C
C
and D
D
E
E to H are not
F coparceners
G
H
Diagram 7
A
Coparcenery
B consists
between A
C
and D
D
E
E to H are not
F coparceners
G
H
Diagram 8
A
B
C
D
Coparcenery
E consists
between D to
F G
G
H is not a
H coparcener
Diagram 9
A
Coparcenary
B consists
only A
C
D
E
G to H are not
F coparceners
G
H
 Diagram 10
A 1. B and C dies.
Coparcenery
B consists between A,
D and E.
C

D E

DS DS ES ES
 Diagram 11
2. If E dies – Coparcenery
A consists between A
and D. In that case E’s
sons will not be
B
coparceners in A’s
family.
C

D E

DS DS ES ES
 Coparcener’s 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 of challenge an improper alienation
made by the Karta;
 Coparcener’s Rights:
Food
Clothes

 Right of maintenance: Shelter

Medical

Education
Marriage
Coparcener’s Rights: (contd.)
Partition

 Right to partition: Re-opening

Re-union
 Coparcener’s Rights:
 No female can be a coparcener:
 No right by birth to female members in the Hindu
joint family property;
 No right of survivorship;
 No right to ask for partition (though certain
females get share on partition.
 Member’s rights:
 Right of maintenance:
food;
clothes;
shelter;
medical expenses;
educational expenses;
marriage expenses etc.

 Right to get share on partition:

 Coparcenary within coparcenary:
 It is possible that separate coparcenaries may exist
within a coparcenary.
 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 D’s
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.
 A

B C D

CS CS DS DS DS

S S S S S