INTRODUCTION:

The unique concept of coparcenary is the product of ancient Hindu jurisprudence which later on
became the essential feature of Hindu law in general and Mitakshara School of Hindu law in
particular.
Coparcenary is unity of title, possession and interest. To clarify the term further, a Hindu
Coparcenary is a much narrower body than a Hindu joint family, it includes only those persons
who acquire by birth an interest in the coparcenary property, they being the sons, grandsons, and
great-grandsons of the holders of the property for the time being. A coparcenary is purely a
creation of law; it cannot be created by act of parties, except by adoption. In order to be able to
claim a partition, it does not matter how remote from the common ancestor a person may be,
provided he is not more than four degrees removed from the last male owner who has himself
taken an interest by birth.
In Hindu law of succession the coparcenary is still not codified. There are two Schools, viz., the
Mitakshara and the Dayabhaga. According to the Mitakshara School, there is unity of ownership
- the whole body of coparceners is the owner and no individual can say, while the family is
undivided that he has a definite share as his interest is always fluctuating being liable to be
enlarged by deaths and diminished by birth in the family. There is also unity of possession and
enjoyment. Further, while the family is joint and some coparceners have children and others have
few or none or some are absent, they cannot complain at the time of partition about some
coparceners having exhausted the whole income and cannot ask for an account of past income
and expenditure.
The conception of coparcenary under the Dayabhaga School is entirely different from that of the
Mitakshara School. Under the Dayabhaga School, sons do not acquire any interest by birth in
ancestral property, but the sons right arises only on the fathers death and the sons take property
as heirs and not as survivors.

Mitakshara school:
It is important to note the distinction between ancestral property and separate property. Property
inherited by a Hindu from his father, fathers father, or fathers fathers father, is ancestral
property. Property inherited by him from other relations is his separate property. The essential
feature of ancestral property is that if the person inheriting it has sons, grandsons, or great
grandsons, they become coparceners with him and become entitled to it by reason of their birth.
Ancestral property is species of coparcenary property. As stated before, 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 his father as regards the property so inherited and
the coparcenary consists of the father and the son. But this does not mean that a coparcenary can
consist only of a 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. Thus, if A inherits
property from his father and he has two sons B and C, they both become coparceners with him as
regards the ancestral property. A, as the head of the family, is entitled to hold the property and to
manage it and hence is called the manager of the property.

EXTENT:
Though a coparcenary must have a common ancestor to start with, it is not to be supposed that at
every extent coparcenary is limited to four degrees from the common ancestor. A member of a
joint family may be removed more than four degrees from the common ancestor (original holder
of coparcenary property) and yet he may be a coparcener. Whether he is so or not depends on the
answer to the question whether he can demand partition of the coparcenary property. If he can,
he is a coparcener but not otherwise. The rule is that partition can be demanded by any member
of a joint family who is not removed more than four degrees from the last holder, however,
remote he may be from the common ancestor or original holder of the property.
When a member of a joint family is removed more than four degrees from the last holder he
cannot demand partition, and therefore, he is not a coparcener. On the death, however, of the last
holder, he would be entitled to a share on partition, unless his father, grandfather and great
grandfather had all predeceased last holder. The reason is that whenever a break of more than
three degree occurs between the holders of property the coparcenary comes to an end.
Another important element of a coparcenary under the Mitakshara law is unity of ownership.
The ownership of the coparcenary property is in the whole body of coparceners. According to the
rule, the notion of an undivided family governed by the Mitakshara law, no individual member
of that family whilst it remains undivided can predicate of the joint and undivided property that
he, that particular member has a definite share, one third or one fourth. 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. The rights of each coparcener until a partition takes place
consist in a common possession and common enjoyment of the coparcenary property. As
observed by the Privy Council in Katama Natchiar v. The Rajah of Shivaganga,6 there is
community of interest and unity of possession between all the members of coparcenary, and
upon the death of any one of them, the others will take by survivorship in which they had during
the deceaseds life time a common interest and a common possession.
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
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 son
DAYABHAGA SCHOOL:
The conception of coparcenary and coparcenary property according to the Dayabhaga School is
entirely distinct from that of the Mitakshara School. According to Mitakshara School, a son
acquires at birth an interest with his father in ancestral property held by the father and on the
death of the father the son takes the property, not as his heir, but by survivorship. According to

Dayabhaga School, the son does not acquire an interest by birth in ancestral property. Sons right
arises only on the death of his father. On the death of the father he takes such property as is left
by him whether separate or ancestral, as heir and not by survivorship.
According to the Mitakshara School, the foundation of coparcenary is first laid on the birth of a
son. The sons birth is the starting point of a coparcenary according to Mitakshara School. Thus,
if a Hindu governed by the Mitakshara School has a son born to him, the father and the son at
once become coparceners.
According to Dayabhaga School, the foundation of a coparcenary is laid on the death of the
father. So long as the father is alive, there is no coparcenary in its strict sense of the word
between him and his male issue. It is only on his death leaving two or more male issues that a
coparcenary is first formed. Thus, it would be correct to say that the formation of a coparcenary
does not depend upon any act of the parties. It is a creation of the law. It is formed spontaneously
on the death of the ancestor. It may be dissolved immediately afterwards by Coparcenary under
Hindu Law : Boundaries redefined 34 NALSAR Law Review [Vol.4 : No.1 partition but until
then the heirs hold the property as coparceners. These observations must obviously be read in the
context of a father dying leaving two or more male issues who would constitute a coparcenary,
though of course, in their case, there would be only unity of possession and not unity of
ownership. Thus, till a partition by metes and bounds, that is, actual and final distribution of
properties takes place, each coparcener can say what his share will be. In other words, none of
them can say such and such property will fall to his share. Each coparcener is in possession of
the entire property, even if he has no actual possession, as possession of one is possession of all.
No one can claim any exclusive possession of property unless agreed upon by coparceners.
In Sudarsana Maistri v. Narasimhulu,7 it was held that a joint family and its coparcenary with all
its incidents are purely a creature of Hindu law and cannot be created by act of parties, as the
fundamental principle of the joint family is the tie of sapindaship arising by birth, marriage and
adoption.
Female as a Coparcener:
The concept of coparcenary was introduced in the ancient India. Over the period of years the
circumstances changed, and with the need of the hour Hindu Succession Act, 1956 which was
again amended in 2005. The Hindu Succession (Amendment) Act, 2005, amended Section 6 of
the Hindu Succession Act, 1956, allowing daughters of the deceased equal rights with sons. In
the case of coparcenary property, or a case in which two people inherit property equally between
them, the daughter and son are subject to the same liabilities and disabilities. The amendment
essentially furthers equal rights between males and females in the legal system.

Features of coparcenary:
The following are the features:
1. How long has the Coparcenary arise? :
DAYABHAGA - no right by birth as on Coparcenary. After the death of Father, his sons
constitute a Coparcenary.
MITAKSHARA- Right by birth.
2. Nature of interest:
DAYABHAGA- there is a defined interest. it does not pass by survivorship.
MITAKSHARA- Coparcener share is not defined.it fluctuate by birth and death of coparcener.
3. Expansion of Coparcenary:
DAYABHAGA- On the death of one of his heirs becomes coparceners.
MITAKSHARA- only males can be coparceners.
4. Alienee's right to ask for partition:
DAYABHAGA- if any equity is held for an Alienee for a suit of partition he Can ask for a joint
possession with coparcener.
MITAKSHARA- there is no definite share for an Alienee, but he may file a suit for the partition.
Hence suit is the only appropriate remedy.
5. Persons entitled to partition:
DAYABHAGA- The law does not confer on SON a right of birth hence he has no right for
partition against the Father.
MITAKSHARA- SONS can institute a suit of partition even against the Father

Incidents of Coparcenary Property under Hindu Law

1. Four generation rule The lineal male descendants of a person, up to third generation
(excluding him), acquire on birth, an interest in the coparcenary property.

2. Creation of law- Coparcenary is also a creation of law and cannot be formed by an

agreement between the parties.
3. Only males No stranger can be introduced in the coparcenary. Only a male child, born
in the family or validly adopted, can become a coparcener. Though now daughters have
the same right as son after the amendment act of 2005.
4. Collective enjoyment The proceeds of undivided family must be brought to the
common chest or purse and then dealt with according to the modes of enjoyment by the
members as an undivided family till a partition takes place because they hold everything
jointly.
5. Acquisition of interest by birth A coparcener in a joint family is born with an interest
in the coparcenary property which means that the moment he is born in the family he gets
a right by birth in the ownership of the coparcenary property.
6. Fluctuating and not a specific interest A coparcener on birth gets an interest in the
coparcenary property. His interest in the property is not a specific share and is subject to
fluctuation with the deaths and births of other coparceners in the family. For example, a
joint family comprises a father and two sons. Each of these is a coparcener and entitled to
one- third share in the coparcenary property but on the death of any one coparcener, it
will fluctuate and will increase.

7. Doctrine of Survivorship Under the traditional law, on the death of a coparcener, 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 dependents. This phenomenon is called doctrine of survivorship.
According to the principles of Hindu Law, there is coparcenership between the different
members of a united family and survivorship following upon it. But this right of
survivorship is lost if the marriage of the coparcener is solemnized under the Special
Marriage Act of 1872.
In other words, survivorship consists in the exclusion of the widows and other heirs of
the coparcener from succeeding to his undivided interest in the coparcenary property.
Even a disqualified person is a member of the coparcenary and even though he has no
rights at a family partition, he is entitled, when he becomes the last surviving male
member of the joint family, to take and enjoy the whole estate by survivorship.
[Muthuswami Gurukkal v. Meenammal (1919) 43 Mad. 664.]
8. Alienation of undivided interests Generally, a coparcener is individually not entitled
to alienate his undivided interest in the coparcenary property. Only in certain situations
the father or senior most male member or the karta can alienate the undivided interest or
even the whole property. Property can be alienated in two ways: 1.Voluntary alienation 2.
Involuntary alienation
When the owner of property transfers it willingly, it is voluntary alienation. It may be
made in three ways, (i) for consideration e.g. by sale, mortgage, lease or exchange, (ii) by
gift, and (iii) by will.
Involuntary alienation takes place when the court attaches the property of a person. The
property of the joint family or undivided interest of a coparcener in such property may
also be alienated by this mode.
A person can alienate joint family property only when there is some necessity, legal
necessity or for the benefit of estate
9. Right to partition
10. Unity of possession and community of interests- no coparcener can claim any
individual interest or share in the property so long as the family is joint and all the
coparceners have a right of common enjoyment of property holding possession.