Coparcenery under Mitakshara school is narrower body of persons within a Joint family. Mulla in “Principles of Hindu Law” (12th edition) has stated that Joint family consists of all persons lineally descended from common ancestor and includes their wives and unmarried daughters. Hindu Coparcenary is much narrower body than Joint family and it includes only those persons who acquire by birth an interest in joint or coparcenary property. The conception of Joint Hindu family constituting a coparcenary is that of common male ancestor with his lineal descendants in male line within four degree counting from and inclusive of such ancestor. No coparcenary can commence without common male ancestor although after his death it may consist of collaterals. No female can be a co-parcener(she can after amendment of 2005). Coparcener has following Rights :-
1. Community of Interest and Unity of Possession — The nature of ownership of Mitakshara Coparceners in the joint family property is communal ownership. Each coparcener, right from day of his birth acquires a interest joint family property and he has right of common enjoyment and use of whole of property. As coparcener’s interest in property are not specified or ascertained each coparcener has joint and equal interest in whole of joint property of family
2. Share of income — A member of a joint family has no definite share in the joint family property. He cannot predicate, at any given moment, as to what is his share in the joint family property. Such a share becomes definite only when a partition takes place. His interest is fluctuating one which is likely to be increased or diminished by deaths and births in the family. Thus no member is entitled to any definite share of the income of the property. The whole income of the joint family property is brought to the common purse of the family and then it is dealt with as per the right of the member to enjoy such property.
3. Right of Inheritance by Survivorship – Once of the most remarkable feature of Mitakshara Coparcenery that every coparcener has right of inheritance by survivorship which means that upon death of any coparcener deceased’s interest in coparcenary property will devolve to surviving coparceners. This is the reason, why coparcener’s interest in joint family property keeps on fluctuating as on birth of any coparcener, he acquires equal interest in property from day of birth thereby diminishing the interest of each coparcener and upon death of any coparcener his interest in joint family property devolves to all surviving coparceners, which increase each coparcener’s interest.
4. Right of Maintenance and other Necessary Expenses — Every coparcener is entitled to be maintained out of the estate of the family. For this reason, he is entitled to receive from the coparcenary property the maintenance for himself, his wife and children as also for those whom he is bound to maintain. Beside such maintenance, a coparcener is also entitled to get money from the coparcenary property for the purpose of the marriage of his children and for the performance of the Shradha and Upanayanaceremonies.
5. Right to Restrain Improper Acts — Every coparcener has the right of restraining improper acts on the part of other coparceners, where such an act causes substantial injury to his rights as a member of the family. Thus, if a coparcener erects a building on land belonging to the joint family so as to materially alter the condition of the property, he may be restrained by an injunction of a court of law from doing so.
6. Right to ask for Partition :- A coparcener in Mitakshara school of Hindu Law, acquire interest in Joint Hindu family property from the day of his birth and at any time during his life if he wants to separate or indvidualize his interest, he can do so by filing suit for partition. In such eventuality, coparcener also has right to ask for accounts etc of joint estate during pendency of suit for partition.
7. Right of Alienation :- No coparcener has any right to gift away or alienate in any way his undivided interest in coparcenary property. It is however important to point out that any such unauthorized alienation by coparcener is not void but voidable at the option of other coparceners.
A “Karta” or a coparcener has certain special powers of disposition over the coparcenary property which no other coparcener has.
8. Right to Impeach Unauthorized Alienation — Every coparcener has the right to impeach alienation of the coparcenary property by the manager or any other coparcener in excess of their power. Such an alienation can be impleaded only by a coparcener or by a transferee who has acquired the entire interest of a joint family in the property alienated. A female member of the family has no such power.
9. Right to Renounce — A coparcener has right to renounce his interest in the coparcenary property. He can do so by expressing his intention to that effect, and if he does so, no other formalities would be necessary. Such a renunciation must, however, be in favour of the whole body of coparceners. If he renounces in favour of one or more individual members, the renunciation operates for the benefit of all the coparceners.
10. Right to Acquire Properties :- A coparcener has right to acquire personal property. As it was observed in Harihar Sethi v. Ladukishore Sethi, AIR 2002 Ori. 110, that a Hindu even if joint may possess separate property. Such property exclusively belongs to him and no other member of coparcenary has got any interest in it.
11. Right to Manage :- Every senior coparcener of family is entitled to manage the coparcenary property and business and to look after the interests of family.
Present article is for educational purposes alone, please take independent Legal advice from a professionals.
Advocate Prakhar Gupta, Arms Length Legal