A Hindu coparcenary is a much narrower body than a joint family. It includes only those persons who acquire by birth an interest in the joint or coparcenary property. These are the sons, grandsons, and great-grandsons of the holder of the joint property for the time being, in other words, the three generations next to the holder of unbroken male descent. Ancestral property is a species of coparcenary property. 

As stated above, if a Hindu inherits property from his father, it becomes ancestral in his hands as regards his son. In such a case, it is said that the son becomes a coparcener with the father as regards the property so inherited, and the coparcenary consists of the father and the son. However, this does not mean that the coparcenary can consist only of the father and his sons. It is not only the sons but also the grandsons and great-grandsons who acquire an interest by birth in the coparcenary property. Coparcenary begins with a common male ancestor and his lineal descendants in the male line within four degrees, counting from and inclusive of such an ancestor. The Mitakshara concept of coparcenary is based on the notion of a son’s birthright in joint family property.

 Though every coparcenary must have a common ancestor to start with, it is not to be supposed that every extant coparcenary is limited to four degrees from the common ancestor. When a member of a joint family is removed more than four degrees from the last holder, he cannot demand a partition, and therefore he is not a coparcenary. On the death, however, of the last holder, he would become a member of the coparcenary, if he was fifth in descent from him and would be entitled to a share on partition unless his father, grandfather and great-grandfather had all predeceased the last holder. Whenever a break of more than three degrees occurs between any holder of the property and the person who claims to enter the coparcenary after his death the line ceases in that direction and the survivorship is confined to those collaterals and descendants who are within the limit of four degrees. 

In Ceylon- Attorney-General of Ceylon v. A. R. Arunachalam Chettiar case, a father and his son constituted a joint family governed by Mitakshara School of Hindu Law. The father and the son were domiciled in India and had trading and other interests in India. The undivided son died and the father became the sole surviving coparcener in a Hindu Undivided family to which a number of female members belonged. In this, the court said that the widows in the family including the widow of the predeceased son had the power to introduce coparceners in the family by adoption and that power was exercised after the death of a son. 

In Gowli Buddanna v. Commissioner of Income-Tax, Mysore a family consisting of a father, his wife, his two unmarried daughters and his adopted son. After the death of the father question arises whether the sole male surviving coparcener of the Hindu joint family, his widowed mother and sisters constitute a Hindu undivided family within the meaning of the Income Tax Act. In this case, it was held by the court property of a joint family does not cease to belong to the family merely because the family is represented by a single coparcener who possesses rights that an owner of property may possess. The property which yielded the income originally belonged to a Hindu undivided family. 

In Moro Vishvanath v. Ganesh Vithal, the plaintiffs and defendants are descendants of one Udhav. The defendants are all fourth in descent from him. The plaintiffs, however, are, some fifth, and others sixth in descent from him. The question, however, whether, assuming them to be undivided, the plaintiffs are entitled to sue at all for a partition according to Hindu Law, is one of considerable importance and difficulty. It was urged that Plaintiffs cannot claim from the defendants any partition of property descended from that common ancestor. It was held that upon a consideration of the authorities cited, it seems to me that it would be difficult to uphold the appellants’ contention that a partition could not, in any case, be demanded by descendants of a common ancestor, more than four degrees removed, of property originally descended from him. 

Suppose a coparcenary consisted originally of A, B, C, D, E, F, G and H, with A as the common ancestor. Suppose A dies first, then B, then C, then D, and then E, and that G has then a son I, and H has a son J and J has a son K. On E’s death, the coparcenary will consist of F, G,H,I,J and K. Suppose that G,H and J die one after another, and the only survivors of the joint family are F,I and K. Are I and K coparceners with F? Yes, though I is fifth in descent from A, and K is sixth in descent from A. The reason is that either of them can demand a partition of the family property Here the coparcenary consists of three Collaterals, namely, F,I and K.

 The essence of a coparcenary under Mitakshara law is unity of ownership. The ownership of the coparcenary property is in the whole body of coparceners. According to the true notion of an undivided family governed by Mitakshara law, no individual member of that family, whilst it remains undivided, can predicate, the joint and undivided property, that he, that particular member, has a definite share. His interest is a fluctuating interest, capable of being enlarged by deaths in the family, and liable to be diminished by births in the family. It is only on partition that he becomes entitled to a definite share. The most appropriate term to describe the interest of a coparcener in coparcenary property is ‘undivided coparcenary interest’. If a Mitakshara coparcener dies immediately on his death his interest devolves on the surviving coparceners. 

The Supreme Court has summarized the position and observed that the coparcenary property is held in collective ownership by all the coparceners in a quasi-corporate capacity. 

The incidents of coparcenary are: 

1 The lineal male descendants of a person up to the third generation, acquire on birth ownership in the ancestral properties of such person; 

2 such descendants can at any time work out their rights by asking for partition; 

3 till partition each member has got ownership extending over the entire property conjointly enjoyment of the properties is common; 

4 As a result of such co-ownership the possession and enjoyment of the properties are common; 

5 No alienation of the property is possible unless it is for necessity, without the concurrence of the coparceners and 

6 The interest of a deceased member passes on his death to the surviving coparceners. 

Every coparcener and every other member of the joint family has a right to maintenance out of the joint family property. The right of maintenance subsists through the life of the member so long as the family remains joint. No female can be a coparcener under Mitakshara law. Even the wife, though she is entitled to maintenance. 

Difference between Joint Hindu Family and Coparcener

 1 In order to constitute a Joint Hindu family the existence of any kind of property is not required whereas in Coparcenary there exists an ancestral property. 

2 Joint Hindu families consist of male and female members of a family whereas in Coparcenary no female can be a coparcener. 

3 Coparcenars are members of the Joint Hindu Family whereas all the members of the Joint Hindu family are not Coparcenars.

 Dayabhaga School on Coparcenar and Joint Hindu Family: 

According to the Dayabhaga law, the sons do not acquire any interest by birth in ancestral property. Their rights arise for the first time on the father’s death. On death, they take much of the property as if left by him, whether separate or ancestral, as heirs and not by survivorship. Since the sons do not take any interest in ancestral property in their father’s lifetime, there can be no coparcenary in the strict sense of the word between a father and sons according to the Dayabhaga law. The father can dispose of ancestral property, whether movable or immovable by sale, gift, will or otherwise in the same way as he can dispose of his separate property. Since sons do not acquire any interest by birth in ancestral property, they cannot demand a partition of such property from the father. A coparcenary under the Dayabhaga law could thus consist of males as well as females. Every coparcener takes a defined share in the property, and he is the owner of that share. It does not fluctuate with birth and deaths in the family

Formation and Incident under the coparcenary property under Dayabhaga and Mitakshara Co parcenary – 

The system of coparcenary Formation of Mitakshara coparcenary – 

A single person cannot form a coparcenary. There should be at least two male members to constitute it. Like a Hindu joint family, the presence of a senior male member is a must to start a coparcenary. A minimum of two members are required to start and continue a coparcenary. Moreover, the relation of father and son is essential for starting a coparcenary. For example, a Hindu male obtains a share at a time of partition from his father and then gets married. Till the son is born, he is the sole male in this family, but he alone will not form a coparcenary. On the birth of his son, a coparcenary comprising of him and his son, will come into existence. When this son gets married, and a son is born to him, the coparcenary will comprise the father F, his son S, and his grandson SS. 

S

 SS

 When a coparcenary is started, the senior most male member, with his son, that is, lineal male descendant, till four generations (inclusive of him) of the male line will form a coparcenary. If there is a lineal male descendant in the fifth generation, he will be a member of the joint family, but will not be a coparcener as he is removed from the senior most male member by more than four generations. 

When all the coparceners die, leaving behind only one of them, the surviving coparcener is called the sole surviving coparcener. As a minimum of two male members are required to form a coparcenary, a sole surviving coparcener cannot form a coparcenary all by himself. 

Why is coparcenary limited? 

The coparcenary is limited to three generations of lineal male decadence of the last holder of the property owner. According to the tenets of Hinduism, only descendants up to three generations can offer spiritual ministrations to the common ancestor. Besides, only males can be coparceners because the females invariably leave the father’s house and assume domestic duties as they enter in the husband’s home. 

Unmarried women, until 1956 only had the right of maintenance from the joint property, which included only the marriage expenses. The 1937 legislation allowed a widow to move into the shoes of her deceased husband and inherit his share. However, she does NOT become a coparcenary to this joint property. 

The doctrine of reversions:

 Hindu Succession Act, 1956: – For the first time, the widow got full rights in her husband’s property S. 14 of the Act 2005 Act -daughters, by birth, got coparcenary rights. 

Women as coparcenaries: 

Under Mitakshara coparcenaries, women cannot be coparceners. A wife, under Hindu law, has a right to maintenance out of her husband’s property. Yet she is not a coparcener with him. Even a widow succeeding to her deceased husband’s share in the joint family, under the Hindu Women’s (Right to Property) Act, 1937, is not a coparcenary. Unity of possession and community of interest – One of the basic features of a coparcenary is unity of possession and community of interest. All the coparceners jointly own the coparcenary property and till a partition takes place, and their shares are specifically demarcated, no one can claim ownership over any specific item of the coparcenary property. 

The proceeds of an undivided family are enjoyed by its members as till a partition takes place, they hold everything jointly. Coparcenary property suggests ownership by one group collectively, and enjoyment and possession of it by not only this group exclusively, but by the joint family members who are outside this group. 

The doctrine of survivorship – 

The shares of the coparceners are not specific and are subject to change with the births and deaths of the coparceners, in the family. Under the traditional or the classical law, on the death of the coparcener in a joint family, his interest in the family property is immediately taken by those coparceners who survive him, and thus, he leaves nothing behind out of his interest in the coparcenary property for his female dependants. This phenomenon is called the doctrine of survivorship. On birth, he takes an interest, and enjoys it during his lifetime, but leaves nothing for his female dependants on his death. In the Dayabhaga system, one is entitled to succeed the property after the death of the male holder. Till then, he is just an heir.

 Notional Partition – 

The 1956 Act brought some changes in the coparcener system. Notional partition was taken into consideration to compute and demarcate the shares. i.e. Father and 2 sons 1/3rd each, though not specified as to what the specific exact division is. 

Commencement of coparcenary – 

One of the primary differences between Mitakshara and Dayabhaga Law is the commencement or the starting of the coparcenary itself. Under the Mitakshara law, the starting point of the coparcenary is the birth of the son in the family of a person, who after inheriting the property from his father, paternal grandfather, or paternal great-grandfather or obtaining property on partition holds it as a sole surviving coparcener. For example, in a coparcenary consisting of a father F, and his two sons A and B, A demands a partition, takes his share and then gets married, when a son is born to him, he will form a coparcenary with his son. Thus, the birth of a son is the starting point or reviving point of the Mitakshara coparcenary. 

In complete contrast to it, under the Dayabhaga Law, the father so long as he is alive, holds the property as a sole or exclusive owner of it. On his death, if he is survived by two or more sons, they inherit the property and form a coparcenary. It is the death of the father that becomes the starting point of the formation of coparcenary, under the Dayabhaga Law

Notional Partition –

 It was generally felt that radical reform was required in Mitakshara Law of the coparcenary and that where one of the coparceners died, it was necessary that in respect of his undivided interest in the coparcenary property, there should be equal distribution of that share between his male and female heirs, and particularly between his son and daughter. The Hindu Women’s (Right to Property) Act, of 1937 conferred new rights on the widows of coparceners. 

The initial part of section 6 of the 1956 Act does not interfere with the special rights of those who are members of Mitakshara coparcenary, except to the extent that it seems to ensure the female heirs and daughter’s son, specified in Class I of the schedule, a share in the interest of a coparcener in the event of his death by introducing the concept of a notional partition immediately before his death and carving out his share in the coparcenary property, as of that date. The section proceeds first by making provision for the retention of the right of survivorship and then engrafts on that rule the important qualification enacted by the provision. The proviso operates only where the deceased has left surviving him a daughter’s son, or any female heir specified in Class I of the schedule. 

Illustrations – 

A and his son B are members of a Mitakshara coparcenary. A dies intestate. Surviving him is his only son B. His undivided interest in the coparcenary property will devolve upon B by survivorship as clearly envisaged in the initial part of the section and not by succession.

 A and his sons B and C are members of a Mitakshara coparcenary. A died intestate in 1958. Surviving him are his widow A1 and his two sons. B and C continue to be members of the joint family. A’s undivided interest in the coparcenary property will not devolve by survivorship upon B and C but will devolve by succession upon A1, B, and C.

 The amending act of 2005 is an attempt to remove the discrimination as contained in the amended section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu mitakshara coparcenery property as the sons have. Simultaneously, section 23 of the Act,  disentitles the female heir to ask for partition in respect of a dwelling house wholly occupied by a joint family, until a male heir chooses to divide their respective shares therein, has been amended by the amending Act of 2005. As a result, the disabilities of female heirs were removed. This great step and is the product of 174th report of the Law Commission of India. If P dies, leaving behind a mother M, and two sons A and B, and three daughters, E, F, G, how would the property devolve? – 1/6th each. If P dies, leaving behind a mother M, and a son S, and two daughters B and D, how would the property devolve – 1/4th each? P dies, leaving behind a widow W, and his mother M, and his two sons, A and B. – 1/4th each. P dies, leaving behind his mother M, and his two widows A and B, and a son S.- 1/3rd, 1/6th, 1/6th, and 1/3rd resp. P dies, leaving behind a son A and a daughter B of a pre-deceased SS, and two sons C, E and a daughter F of a predeceased daughter D. Triple succession. P dies, leaving behind his two widows A and B, his mother M, two widows C and D and a son S of a pre-deceased son and two daughters E and F and a son G of a predeceased daughter. Under the old Hindu law, conversion by a Hindu to another religion was a disqualification, which was removed by the Caste Disabilities Removal Act, of1850. 

Under the Act, conversion does not disqualify an heir from inheriting the property of the intestate, but descendants of a convert are disqualified from inheriting the intestate. Thus, the children of the convert and descendants of the children are disqualified, but if at the time of death of the intestate, any one of them is a Hindu, he is not disqualified. 

Succession to the property of a convert is regulated by the personal law applicable to the convert after his conversion. The provision of S. 26 may be explained by some illustrations: 

An intestate dies leaving behind two sons A and B, and a grandson SS, from a pre-deceased son, who had converted to Islam before SS was born to him. SS is disqualified, and the entire property is inherited by A and B. 

P had three sons A, B, and C. C converted to Christianity on 1.1.1979. P died on 1.1.1982. C will get the property (CDRA) P has three sons, A, B and C. A son R was born to C on 1.1.1976. On 1.1.1978, C converted to Islam. On 1.1.1979, after his conversion, S, a daughter was born to him. C died on 1.1.1980. P dies on 1.3.1982. 

Agnates – 

A person is said to be an agnate of another if the two are related by blood, or adoption only through males. S. 8 of the Hindu Succession Act, 1956 does not give the list of agnates, or state the order in which they are entitled to succeed, but S. 12 of the HSA lays down certain rules of preference, which are determinative of the order of succession among agnates, and S. 13 lays down certain rules for determining that order by computation of degrees, both of ascent and descent. In accordance with the rules laid down in S. 12, agnates and cognates may conveniently be divided into the following subcategories or grades: 

Agnates: Agnates who are descendants –

 They are related to the intestate by no degree of ascent. Such, for instance, are the son’s son’s son’s son, and the son’s son’s son’s daughter. 

Agnates who are ascendants – They are related to the intestate only by degrees of ascent and no degrees of descent. Such, for instance, are the father’s father’s father and the father’s father’s mother. 

Agnates who are collaterals – They are related to the intestate by degrees, both of ascent and descent, such, for instance, are the father’s brother’s son, and the father’s brother’s daughter. 

Cognates – 

A person is said to be a cognate of another if the two are related by blood or adoption, but not wholly through males. They may be related through one or more females. Thus, a mother’s brother’s son and brother’s daughter’s daughter are cognates. The three categories of cognates are: 

1. Cognates who are descendants – 

Such, for instance, are the son’s daughter’s son’s son and daughter’s son’s son’s son. 

2. Cognates who are ascendants – 

Such for instance are the father’s mother’s father and the mother’s father’s father. 

3. Cognates who are collaterals – 

They are related to the intestate by degrees, both of ascent and descent. Such, for instance, are the Father’s sister’s son and the Mother’s brother’s son.

Computation of degrees – 

Application of the rules of preference governing order of succession laid down in S. 12 involves computation of the degrees of relationship between the intestate and his agnates or cognates. That relationship is to be reckoned from the intestate to the heir in terms of degrees with the propositus (intestate) as the starting point. There is no rule of discrimination or preference between male and female heirs, and both, male and female relatives by blood or adoption are treated equally. The computation of degrees of ascent or descent is to be so made that it is inclusive of the intestate. The relationship must be reckoned from the propositus to the heir in terms of degrees with the propositus as the terminus a quo (S. 13(ii). The other rule is that every generation constitutes a degree, either ascending or descending (S. 13(iii). 

Rules of preference – 

The order of succession among agnates or cognates is governed by three rules of preference, laid down in S. 12, which are common to both the categories of heirs. In order to determine which of the two or more claimants in the category of agnates or of cognates, recourse must be taken to rule 1 and 2, laid down in S. 12, and initially to rule 1. When one competing heir is not entitled to be preferred to the other under Rule 1 or 2, they take simultaneously, under Rule 3. 

Rule 1 – 

This rule is pivotal and enacts that, of two heirs, the one who has fewer or no degrees of ascent is preferred. Illustration – If the two competing heirs are two collateral agnates, that is, brother’s son’s daughter, (father’s son’s son’s daughter), and b) paternal uncle’s son (father’s father’s son’s son). The former, who has only 2 degrees of ascent, is to be preferred to the latter who has three degrees of ascent. 

Rule 2 – 

This rule enacts that where the number of degrees of ascent is the same, the one who has fewer or no degrees of descent is preferred. Illustration – The competing heirs are two collateral agnates, a) brother’s son’s daughter (father’s son’s son’s daughter), and b) brother’s son’s son’s daughter (father’s son’s son’s son’s daughter). Again, the former is to be preferred, because, in spite of having two degrees of ascent, each, the former has only three degrees of descent compared to the latter’s.

 Rule 3 – 

This rule enacts that where neither heir is entitled to be preferred, under rule 1 or two, they take simultaneously. 

Illustration 1 – The competing heirs are two agnates, a) son’s son’s son’s son, and b) son’s son’s son’s daughter. There are no degrees of ascent, and the number of degrees of descent is the same in the case of both, and both stand in the same degree of descent. Therefore, neither heir is entitled to be preferred.

 Illustration 2 – The competing heirs are two cognates, a) daughter’s son’s son, and b) son’s daughter’s son. The position is similar, to that of illustration 1 and they take simultaneously.