Hindu Joint Family and Coparcenary

HINDU JOINT FAMILY AND COPARCENARY

Hindu Joint Family and Coparcenary as a concept are seen to be absolutely essential to Hindu Family Law and the differences between the two concepts must be rationalized as well as understood in order to delve further into the intricacies of family law.

The two main schools of law as seen under Hindu Family Law are the Mitakshara School of Law and the Dayabhaga School of Law; the two of which help explain the differences between Hindu Joint Family and Coparcenary easily.

The Mitakshara School of Law governs the succession of property in a Hindu Family. It focuses on the concept of the Joint Hindu Family wherein the son, grandson and the grandson’s son have a birthright in the family property.

Joint Hindu Family can be described as a fundamental concept of Hindu Family Law governed by the Hindu Succession Act, 1956. It is a system of living wherein partition or division of families is not encouraged but rather unity is revered. If one generation is separated, the Joint Family concept is based upon the assumption that the next generation will bring it back into existence. It is important to note that a Joint Hindu Family is not a juristic person and it does not have a separate legal entity unlike a company. It is merely a unit which is represented by the Karta of the family in all matters as was held in the case of Chhotey Lal and Ors. V. Jhandey Lal

.

A family may be deemed as a Hindu Joint Family even if they live separately and worship separately so long as they are joint in the estate. It consists of all the linear male descendants of the family and the daughters of the family remain a part of their father’s Joint family until she is married; Once she is married, she becomes a part of her husband’s Joint family. If a married daughter is deserted or widowed by her husband and returns permanently to her father’s house, she becomes a part of her father’s Joint family once again but her children i.e the direct descendants of her husband remain a part of her husband’s family. In the case of Gur Narain Das v. Gur Tahal Das that even illegitimate male descendants of a man form a part of his Joint Hindu Family.

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For a Joint Hindu Family to come into existence, a common ancestor is absolutely essential. The existence of a common ancestor is pertinent to the formation of the Joint family but not to its continuation which means that the death of the ancestor does not affect the Joint Hindu Family. It must also be taken into account that even adopted children become a part of the adoptive father’s Joint Family.

The members of the Joint family are bound by the fundamental rules of the Sapinda relationship i.e relatives belonging to the same ancestors up to three lines of ascent from the mother’s side and five lines of ascent from the father’s side are not permitted to marry one another.

Ceasing to be a part of the Hindu Joint family happens when:

  1. A member converts to another faith
  2. Via marriage to a person of another faith ( i.e a non-hindu as per Section 2 of the Hindu Marriage Act)
  3. By being given in adoption to another person by the guardian or parents of the child
  4. By marriage of a daughter

The Hindu Joint Family is thereby patriarchal in nature and focuses on the direct male descendants of the family however a Coparcenary is part of the Joint Family and the coparceners are the owners of the joint family property. Thus, the Coparcenary is a part of the Joint Hindu Family and it includes the common ancestor and three degrees of male lineal descendants.

Coparceners are those specific individuals who have an interest by birth in the joint family property. Although previously coparceners included only the male descendants of the family, the Supreme Court of India recently held that daughters, too, acquire coparcenary rights on their birth which means that now, coparceners include three degrees of male and female descendants of the family.

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It is important to clarify here that the descendants can only claim the ancestral property of the family and not the self-acquired property of the father. The self-acquired property of the father can be given to anyone the father wills it to upon his passing.

The key differences between the Hindu Joint Family and the Coparcenary are as follows:

  • In a Joint Family, there is no limitation with regards to the number of members however, in a coparcenary, descendants only upto three generations are considered.
  • Previously in a Coparcenary only male descendants were allowed to inherit the ancestral property and so the coparcenary consisted only of the male members in the family whereas in a Joint Family, both male and female descendants are members.
  • Certain females such as Father’s wife, Mother and Grandmother are not allowed to demand partition in a Joint Family however in a Coparcenary, both male and female members can demand partition as a right.
  • Every Joint Family may not be a Coparcenary but Coparcenary is a part of the Joint Family.
  • The membership of Joint Family members is acquired by birth or by marriage however the membership in a Coparcenary is much narrower and it includes only those persons who acquired the right to property by birth or adoption by sons.
  • A Joint Family is functional even after the death of the Karta but the Coparcenary may come to an end with the death of the last descendant of the family.
  • The illegitimate descendants of a Coparcener are not a part of the Coparcenary but illegitimate children of the Joint Family are indeed a part of the Joint Family itself.
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In the case of Smt. Sitabai and another v. Ramachandra, reported in AIR 1970 SC 343, the Court held that there must be at least two members to constitute a Hindu Joint Family and the two members can both be female as well.

Author: Keerthana R,
Christ University 2nd Year, Law Student

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