MITAKSHARA COPARCENARY HINDU LAW

HINDU LAW

CHAPTER-7

• MITAKSHARA COPARCENARY 

(i) Characteristics of a Mitakshara Coparcenary     

(ii) Joint Hindu family

(iii) Ancestral property

(iv) Separate property

MITAKSHARA COPARCENARY

(i) Characteristics of a Mitakshara coparcenary: 

The Hindu Succession Act has not changed the concept of Mitakshara Coparcenary. 

The Mitakshara coparcenary is a smaller group within the Hindu Joint Family. The members of the group by virtue of relationship have a right to hold and to enjoy the property, to restrain the act of others and also to enforce a partition. 

The characteristics are as follows: 

i)     Status of Coparceners: 

They are the persons of the Mitakshara coparcenary who acquire a right to partake of the inheritance. Their right arises by birth. Mayne defines them as three generation next to the owner, in unbroken male descent, i.e., Propositus, his sons, grand sons and great grandsons, all of them constitute a single coparcenary. Each member is entitled to offer the funeral oblation (cake or Pinda). The son of the great grandson is not a coparcener so long as the common ancestor, the prepositus is alive. While fresh links are being continually added to the chain of descendants by, births, earlier links are being constantly detached or removed by death. Hence, the membership of the coparcenary may be increasing or diminishing. 

ii)    Survivorship: 

There is community of interest and unity of possession among all the members of the coparcenary – (Katama Nachiar Vs. Raja of Shivaganga). On the death of a coparcener the others take by survivorship. The words of Lord Westbury in Approvier Vs. Ramasubbayyan are classic. ‘No individual member of the family while it remains undivided, can predicate that he, that particular member, has a certain definite share of the joint and undivided property’. 

The Hindu Women’s Right to Property Act 1937 made an inroad into the coparcenery and provided that on the death of a coparcener his interest devolved on his widow. The Hindu Succession Act 1956 has by declaring that the widow, becomes the absolute owner of the property (Sn.14), abolished limited estate. 

iii) Partition: 

Each member of the coparcenary has a right to claim partition. Without a partition a member cannot predicate his share in the joint family property. The property will be fluctuating, the quantum of it in the share will be diminishing by birth and increasing by death. 

iv) Heritage: 

It is divided into two classes, Aprathibandadaya and Saprathibandadaya (Un-obstructed property and obstructed property). According to Mithakshara the wealth of a father becomes the property of his son, sons son and son’s son’s son and this is unobstructed property. 

Property which devolves on parents or on brothers and collaterals on the death of the owner is obstructed property. 

v) Position of women: 

Women are not members of the coparcenary. “The twin principles of the right by birth and aprathibandadaya make it evident that women were kept outside the coparcenary”. 

vi) Son’s Right: 

A son as a coparcenet takes his grandfather’s property and father’s property on the principles of right by birth and aprathibandadaya. Smriti Chandrika makes it clear that in case of grand father’s property the ownership and independent power of son and father are equal but in the property of the father the ownership of father and son are unequal. The right of the son remains dormant and enables him to succeed by survivorhsip or by aparthibandadaya. This was clearly affirmed in Arunachala Vs. Muruganatha (1953) (Supreme Court). 

vii) Changes made by the Act of 1956: 

 The Hindu Succession Act has made drastic changes in two aspects: 

1. The coparcener may by a will or any testamentary document, dispose of his undivided interest in the coparcenery (Sn.6). 
2. Survivorship: The rule relating to survivorship in a Mitakshara coparcenery is kept in tact, but some changes have been made in the provison to Sn.6. It states that if the Mitakshara coparcener T” had died leaving a female relative (Class 1 heir) (or a male in that class who claims through such female), the interest of P in the coparcenery property devolves by intestate succession and not by survivorship i.e., the female gets the property by succession. Hence, no,survivorship. 

THE HINDU SUCCESSION (AMENDMENT) ACT, 2005 has made drastic changes to Sn 6 to the Mithakshara Coparcenary. After its commencement, in a joint family governed by Mithakhara law, the daughter of a coparcener shall,-  

          (a) by birth become a coparcener in her own right in the same manner as     the son;  

(b) have the same rights in the coparcenary property as she would have had if she had been a son;  

        (c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:  

              Exception: Those partitions or disposition of property before the commencement of this Act are considered valid. The female Hindu becomes entitled to   disposed of by her by testamentary disposition. Her interest devolves 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:   Further, 

              (a) the daughter is allotted the same share as is allotted to a son;  

              (b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such predeceased son or of such pre-deceased daughter; etc  

(ii) Joint Hindu Family: 

1. This consists of all those persons who are the descendents of a common  ancestor;   it  includes not only the males but also the females ie, wives, widows, unmarried daughters. The daughter ceases to be a member of her husband’s family. 

2. A joint and undivided status is the normal position of a Hindu family. The undivided Hindu family (H.U.F) is joint not only in estate but in food, worship etc. In the family, There may or may not be any property, but the status as H. U. F continues, mere severence in food and worship will riot be separation. 

3. The status as member is by birth (by marriage to a male member)    

4. The H. U. F may  consist of a single male member (sole surviving coparcener) and widows of deceased male members. 

Kinds of Hindu joint family property : 

Broadly divided into two : 

1. Ancestral property 
2. Self Acquired property (separate property) 

This division is relevant and important as the survivorship or succession is decided on the nature of the property. 

(iii) Ancestral property: 

i) It is the property of a male Hindu in which son’s son and 

e.g:- son’s son’s son acquire an interest by  P

• birth. Hence, it extends from the common ancestor P to three degrees. There is unobstructed line of heritage called as Apartibandadaya (means without a 

break) 

ii) The property devolves by survivorship and not by succession. 

This of course subject to Sn. 6 and Sn. 30 of the Hindu Succession Act 1956 in such cases, where they are applicable. E.g.: Ancestral property : P The propositus P dies intestate, P’s property is ancestral and hence, A and B hold A Son as Coparceners. (B acquires the right by birth). B (Son’s son) If A dies intestate, then B gets property by survivorship and not by succession.P dies intestate (i.e., without a will), property is ancestral in the hands of B, C D. When P dies B, C and D take by B C D survivorship. 

(This will not apply in the case of selfacquired property of P. P may dispose of by will and may not give any property to B, C and D. But P cannot prevent B, C and D from getting ancestral property of P)’ 

iii) Accretion to ancestral property and all purchases made or profits earned from the income or sales are ‘ancestral property’. 

iv) Property inherited from Mother, Maternal Grandfather or collateral is not ancestral. It is Saprathibandadaya. Venkayamma Vs. Venkataramanayyama (Supreme Court) 

Facts: Two brothers A and B, members of a joint Hindu family inherited certain properties from their maternal grandfather. A died leaving his widow W. Question was whether that property passed to W by succession, or to B by survivorship. The Privy Council had held that as both A and B had inherited together it was ancestral and B got by survivorship. But our Supreme Court held that this is not ancestral property (only Agnates property is Ancestral). 

v) Share allotted on partition: A coparcener’s share after partition is ancestral as regards his male descendants only. But, as regards others, it is separate property and if he dies intestate with out male issues, it passes on to his heirs by succession. 

vi) Property obtained by gift or under a will from paternal ancestor. This was answered by the Supreme Court in Arunachal Madaliar V. Muruganatha as separate property. 

Facts : A had three sons B, C and D. Under his will, A gave certain properties to his wife and other relatives, and then in the schedule gave his separate properties PI, P2 and P3 to A, B and C respectively, which they may enjoy, absolutely. Held, this was not ancestral in the hands of B, C and D. It is their ‘separate property’. 

vii) Doctrine of Blending : Property thrown into common stock of the family is ancestral property. Even seperate property becomes Hindu undivided property when it is thrown into the hotchpot with intention to abandon all rights over it (malleshappa v. mallappa). 

THE HINDU SUCCESSION (AMENDMENT) ACT, 2005 has made drastic changes to Sn 6 to the Mithakshara Coparcenary. 

After its commencement, in a joint family governed by Mithakhara  law, the daughter of a coparcener shall,-  

               (a) by birth become a coparcener in her own right in the same manner as the son;  

               (b) have the same rights in the coparcenary property as she would have had if she had been a son;  

               (c) be subject to the same liabilities in respect of the said coparcenary property as that of a son,  and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:  

                      Exception:Those partitions or disposition of property before the commencement of this Act are considered valid. 

The female Hindu becomes entitled to disposed of by her by testamentary disposition. Her interest devolves 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:-  Further, 

(a) the daughter is allotted the same share as is allotted to a son;  

(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such predeceased son or of such pre-deceased daughter; etc  

(iv) Separate property: 

This is property acquired by a coparcener, without detriment to ancestral property. This is also called self-acquired property. The modes of acquiring are as follows:  

i) Saprati-bandadaya: By obstructed heritage. This is erty acquired by a Hindu by any mode other than Apratibanda-daya.

ii) Gift or grant: Any gift received by the coparcener from his father or from any person. Also govt. grants received by the coparcener. 

iii) Separate earnings of a coparcener. 

iv) Income of separate earnings and purchases made therefrom, or business earnings. Separate Business: Business running in the name of members of the family: One or more members can start business e.g.: partner- ship firm, acquire properties without the assistance of the join family property. Such business is separate. But if that business is thrown into the hotch pot, voluntarily then it becomes JF property. 

The Supreme Court held in Bhagvan Dayal Vs. RathiDevi as follows:

Coparcenery is a creature of Hindu law. And it cannot be ere-, ated by agreement. It is a corporate body or a family unit. Properties can be acquired and disposedoff. Hence the position is that one coparcener may carry on a separate partnership business. In the present case the uncle A and two nephews B and C did not belong to the same branch, hence it cannot become the joint family property. 

The Madeva Prasad Vs. Commissioner of Income Tax, Manager of HUF entered into a partnership as representing his family of which he was the karta, for the benefit of the family. There was a dispute in respect of the properties of the joint family, being involved, in partnership business. The court held that allowances received by Madeva Prasad directly related to the investment made by the family. Hence, it was HUF property and not separate property. 

v) Gains of learning: All properties acquired by a coparcener by his own exertion, and those coming within the Gains of learning Act 1930, are separate properties (Add. Ch. 14.2). 

vi) Share: A share on partition is a separate property if the 

person has no male issues. 

vii) Under the doctrine of blending, separate property becomes Hindu undivided property when it is thrown into the hotchpot with intention to abandon all rights over it (Malleshappa V. Mallappa).