It would be imperative to consider the Hindu Law relating to coparcenary property first.
10. In Mulla's Hindu Law, Twentieth Edition, Volume-I, Chapter XII relating to joint Hindu family-coparceners and coparcenary property- Mitakshara Law the principles of the ancient settled uncodified Hindu Law are succinctly enunciated. The principles may be enumerated thus: (i) The property inherited by a Hindu from his father, father's father or father's father's father is ancestral property (unobstructed heritage as regards his own male issue). -page 357
(ii) His male issues acquire an interest in it from the moment of their birth. -page 357
(iii)They become coparceners with their paternal ancestor upon their birth. -page 357
(iv)The joint and undivided family is a normal condition of Hindu society. Undivided Hindu family is ordinarily joint in estate, food and worship. Page 358
(v)A Hindu coparcenary is a narrower body than the joint family. It includes only those persons who acquire by birth an interest in the joint or coparcenary property. (Hence joint property and coparcenary property or joint Hindu family property or coparcenary property are synonymous). -page 359
(vi)The persons who acquire an interest by birth in a joint family property or coparcenary property are sons, grand sons and great grand sons of the holder of the joint property. Sons, grandsons or great grandsons are joint owners/coparceners. They become entitled to joint property/coparcenary property upon their birth. -page 359 (vii)Ancestral property and separate property are distinct. The property inherited by a Hindu from his father, father's father, father's father's father is ancestral property. The property inherited by him from other relations is his separate property.
(viii)Ancestral property is a species of coparcenary property. If a Hindu acquires coparcenary property from his father, it becomes ancestral in his hands as regards his sons. The sons become coparceners with the father as regards such property. The coparcenary would then consist of the father and the son. -page 361
(ix) The coparcenary may consist also of the grandson and the great- grandson, who acquire an interest by birth in coparcenary property.
Illustration: If A inherits property from his father, his two sons B & C, would become coparceners with him as regards such ancestral property. If B has a son D and C has a son E, the coparcenary will consists of the father, sons and grandsons. -page 361
(x)A joint Hindu family has a common male ancestor with his lineal descendants in the male line within four degrees counting from and inclusive from such ancestor (propositus). {After the amendment of 2005 to Section 6 of the Hindu Succession Act (HSA) (2005 Amendments) which shall be presently considered, the line within four degrees may be male or female}. -pages 361, 362
(xi)No coparcenary can commence without a common male ancestor. {After 2005 Amendment a coparcenary may well commence with a 6 CHS 492/12
common female ancestor}. -page 362
(xii)After the death of common ancestor it may consist of collaterals, such as brothers, uncles, nephews and cousins. (These illustrations show two generations of coparceners). -page 362
(xiii) A coparcenary is a creature of law; it cannot be created by parties. -page 362
(xiv) No female can be a coparcener, although she may be a member of joint Hindu family. (This position has changed upon the 2005 Amendment.) -page 362
(xv) When a Hindu inherits the self acquired property of his father the sons take a vested interest in the property by reason of their birth and the property inherited by their father would become ancestral property in the hands of the son. The sons are coparceners as regards the property. When a son is born to either of them that son would also become a coparcener by the mere fact of his birth. -page 363
(xvi) The property inherited by a person from his father is ancestral in his hands. He is not the owner of the property, he is entitled merely to hold and manage the property as the head of the family for and on behalf of the family. The ownership of the property is in the joint family consisting of himself and his sons. They are all co-owners or coparceners. (Hence the expression co-owners and coparceners are synonymous). -page 364
(xvii) The essence of a coparcenary is unity of ownership. -page 366. (xviii)The ownership of a coparcenary is in the whole body of the coparceners. -page 366
(xix) No coparcener or member of a joint Hindu family has a definite share in the property. His interest is a fluctuating interest. It is enlarged by the deaths in the family; it is diminished by the births in the family. Hence his interest is called "undivided coparcenary interest". -page 366 (xx) He becomes entitled to a definite share only on partition. -page 366. 7 CHS 492/12
(xxi) The members of a joint family who are within 3 degrees from the last holder of the property have a right to demand partition. (xxii)Until partition he would have a common possession and common enjoyment of coparcenary property.
The well known expression of HUF is that there is a "community of interest and unity of possession between all the members of the family which has been enunciated since the Privy Council case of Katama Natchiar Vs. Rajab of Shivagunga (1863) 9 MIA 539 @ 543 & 611. -page 366 (xxiii) Hence the interest of a coparcener in coparcenary property/joint Hindu family property is undivided and indefinite. If fluctuates on the birth or death of a member. So long as the family remains joint no individual member can have a definite share. When it is partitioned the share of the member in the joint family becomes definite. (xxiv)On the death of one coparcener, the others take by survivorship the share which he had in common earlier. -page 366
(xxv) Coparcenary property is, therefore, held in collective ownership by all the coparceners in a quasi-corporate capacity. -page 366 (xxvi) The incidents of a coparcenary are that the lineal male descendants upto the third generation, acquire by birth, the ownership in ancestral properties of their ancestor. -page 366
(xxvii) Their descendants can ask for partition. -page 366 (xxviii) Till partition, each member or coparcener would have ownership extended over the entire property conjointly with the rest. -page 366 (xxix)As a result of the co-ownership the possession and enjoyment of the property is common. Hence the coparceners cannot alienate the property except for necessity without concurrence of all coparceners.- page 366
(xxx) The interest of the deceased members passes on his death to the surviving coparceners. - page 366
(xxxi) The surviving coparceners are not only his brothers and sisters but 8 CHS 492/12
also their children - each being entitled to his own specific equal share. [See. State Bank of India Vs. Ghamandi Ram AIR 1969 SC 1330] (xxxii) The interest of a coparcener in an undivided Mitakshra property is not individual property. -page 367
(xxxiii) Coparcenary property is of two types; apratibandha daya or unobstructed heritage, and sapratibandha daya or obstructed heritage. -page 368
(xxxiv) When a person acquires an interest in the property by birth, it is unobstructed heritage, because the accrual of the right to the property is not obstructed by the existence of the owner. The property inherited by a Hindu from his father or father's father or father's father's father is unobstructed heritage as regards his own male issue i.e. his son, grandson or great-grandson. His sons would acquire an interest in it from the moment of their birth. They become coparceners with their paternal ancestor in such property immediately upon their birth. {After the 2005 Amendment a daughter also would acquire an interest in the unobstructed heritage from the moment of her birth.} -page 369 (xxxv) A property acquired from others e.g. maternal grand-father is obstructed heritage. No right accrues by birth in such property. The right would accrue on the death of the last owner without leaving a male issue. Hence the accrual of the right is obstructed by the existence of the owner. The property devolving upon parents, brothers, nephews, uncles etc. upon the death of the last owner, is obstructed heritage. These relations do not get a vested interest in the property by birth. Until the death of the owner they only have a spes successionis or a bare chance of succession which is contingent upon surviving the owner. -page 369
(xxxvi) Unobstructed heritage devolves by survivorship; obstructed heritage devolves by succession. -page 369
(xxxvii) Property jointly acquired by the members of the joint family, with 9 CHS 492/12
the aid of ancestral property, is also joint family property. Property acquired by them without the aid of ancestral property may or may not be joint family property. -page 370
(xxxviii) The term joint family property is synonymous with coparcenary property. -page 370 (Separate property would be synonymous with self acquired property.) -page 370
(xxxix) A coparcener has joint interest or joint possession in joint family property or coparcenary property. -page 370
(xl) Property inherited by a male Hindu from his father, father's father or father's father's father, is ancestral property. His son, grandson and great-grandson would acquire an interest in it by virtue of their birth, if they have a male issue. (Hence ancestral property is inherited and not self acquired property.) -page 372
(xli) If a person who acquired a property by birth has no male issue, he would hold that property as absolute owner thereof and he would be able to deal with it as he pleased. However if he had a male issue in existence at the time he inherited the property or if he had a male issue subsequently, they would become entitled to the interest in the property by virtue of their birth. -page 372
(xlii) A father cannot change the character of the joint family property into absolute property of his son by bequeathing it to him as if it was the self acquired property of the father. It would be ancestral property only in the hands of the son. His son would acquire it by survivorship since he would acquire an interest in it by his birth. -page 372 (Hence since the father cannot bequeath the property after his death, he cannot also transfer such property during his lifetime inter vivos.) (xliii) A person inheriting property from his three immediate paternal ancestors (father, father's father and father's father's father) must hold it in coparcenary with his son, son's son and son's son's sons. Such property is ancestral as regards his male issue. -page 373 10 CHS 492/12
(xliv) A son takes an interest equal to that of the father in ancestral property upon his birth. -page 377
(xlv) This right is wholly independent of his father. He does not claim through his father. -page 377
........ "under the Mitakshara law each son upon his birth takes an interest equal to that of his father in ancestral property, whether it be movable or immovable. It is very important to note that the right which the son takes at his birth in the ancestral property is wholly independent of his father. He does not claim through the father." (see mulla's Hindu Law, Thirteenth Edition, p. 251, para 224). (See. Valliammai Achi Vs. Nagappa Chettiar & Anr. AIR 1967 SC 1153)
Hence the transfer of such property would affect the interest of the son in the ancestral property.
(xlvi) There is no distinction between the rights of a father and his sons as regards ancestral property. -page 377
(xlvii) A father can, however, dispose of the ancestral property only for payment of his debts (legal necessity). -page 377-378
(xlviii) A father has no greater interest in the joint property than any of his sons. Each son acquires an interest equal to that of the father upon his birth. His grandson and great-grandsons similarly acquire an equal interest upon their birth. -page 378
(xlix) On the death of a coparcener, his interest in the coparcenary property does not pass by succession to his heirs. It passes by survivorship to the other coparceners. {This position of old uncodified Hindu law has been materially altered by Section 6 of the HSA as enacted in 1956 and later as amended in 2005.}
(l) There is a presumption that every Hindu family is joint in food, worship and estate. -page 393
(li) There is a presumption that a joint family continues joint. -page 393 (lii)The presumption of union is the greatest in the case of father and sons. -page 393
(liii)After the coparceners separate, there is no presumption as to joint 11 CHS 492/12
family property. -page 393
(liv)There is no presumption that the joint family possessed joint family property; the party who claims partition must prove that it is joint family property. (If it is admitted to be joint family property or ancestral property, that fact would not have to be proved.) -page 394 (lv) There may be a joint Hindu family which does not have any joint property or any estate. [See. Ram Narain Chand Vs. Purnea Banking Corporation Ltd. AIR 1953 Pat 110
(lvi) The plaintiff must prove (or it may be admitted) that the family possessed some property with the income of which some other property was acquired. Such property would become joint family property since it would be purchased with joint family funds. -page 395 (lvii) Where it is admitted that the family possessed some joint family property, it would form the nucleus from which another property could have been acquired. -page 395
(lviii)Such acquisition would carry a presumption that that was joint property. The presumption that properties in the hands of individual coparceners is coparcenary property (or joint property or ancestral property) would arise if the family nucleus is proved. -page 395 (lix)If no nucleus is shown the members alone would be co-sharers but the property would not be taken to be joint family property and hence would not devolve by survivorship. -page 395
(lx)Coparceners have community of interest and unity of possession. No coparcener is entitled to any any special interest in coparcenary property. No coparcener is entitled to exclusive possession of any part of the property. (No coparcener can, therefore, sell or alienate any ancestral property or joint family property except with the consent of the other coparceners.) -page 409
(lxi)No coparcener can predicate at any given moment what his share in joint family property is. No member would be entitled to a definite 12 CHS 492/12
share in joint family property or in its income. The income would be brought into a common chest or purse. His share would become defined only when the partition takes place. -page 409
(lxii) Each coparcener is entitled to joint possession and enjoyment of family property. -page 410
(lxiii) If a coparcener is excluded from joint possession or enjoyment, he is entitled to enforce his right by a suit. He is not bound to sue for partition. (He may sue for joint possession or enjoyment or for separate possession upon partition. However he would have to value his share in the coparcenary property on the date of filing of the suit and pay court fees thereon). -page 410
(lxiv) The right to enforce a partition and the right survivorship go hand in hand. "It is the right to partition which determines the right to take by survivorship" as held by the Privy Council in Anant Vs. Gopal (1895) 19 Bom 269.
11. These rules and incidents of coparcenary or joint family properties are enumerated in the case of State Bank of India Vs. Ghamandi Ram AIR 1969 SC 1330 thus:
"the incidents of co-parcenership under the Mitakshara law are : first, the lineal male descendants of a person up to the third generation, acquire on birth ownership in the ancestral properties of such person; secondly that such descendants can at any time work out their rights by asking for partition; thirdly, that till partition each member has got ownership extending over the entire property conjointly with the rest; fourthly, that as a result of such co- ownership the possession and enjoyment of the properties is common; fifthly that no alienation of the property is possible unless it be for necessity, without the concurrence of the coparceners, and sixthly, that the interest of a deceased member lapses on his death to the survivors."
Further in the case of Surjit Lal Chhabda Vs. Commissioner of Income Tax, Bombay AIR 1976 SC 109 the conclusion derived from the position of uncodified Hindu Law is set out thus:
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"the expression 'Hindu undivided family' must be construed in the sense in which it is understood under the Hindu Law. The presumption therefore is that the members of a Hindu family are living in a state of union, unless the contrary is established.
generally speaking, the normal state of every Hindu family is joint and in the absence of proof of division, such is the legal presumption.
A Hindu coparcenary is a much narrower body than the joint family. It includes only those persons who acquire by birth an interest in the joint or coparcenary property and these are the sons, grandsons and great-grandsons of the holder of the joint property for the time being, that is to say, the three generations next to the holder in unbroken male descent. Since under the Mitakshara Law, the right to joint family property by birth is vested in the male issue only, females who come in only as heirs to obstructed heritage (sapratibandha daya), cannot be coparceners.
Outside the limits of coparcenary, there is a fringe of persons, males and females, who constitute an undivided or joint family. There is no limit to the number of persons who can compose it nor to their remoteness from the common ancestor and to their relationship with one another. A joint Hindu family consists of persons lineally descended from a common ancestor and includes their wives and unmarried daughters. The daughter, on marriage, ceases to be a member of her father's family and becomes a member of her husband's family. The joint Hindu family is thus a larger body consisting of a group of persons who are united by the tie of sapindaship arising by birth, marriage or adoption.
That it does not take more than one male to form a joint Hindu family with females is well established. In Gowli Buddanna v. Commissioner of Income-tax, Mysore, Bangalore, (1966) 3 SCR 224 = (AIR 1966 SC 1523).
These are the principles of the uncodified Hindu law.
Bombay High Court
Bench: R. S. Dalvi
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