Difference between Joint Hindu

Family and Coparcenary

The concept of Joint Hindu Family and Coparcenary is believed to be one of the
cornerstones of the Hindu family law. It is extremely important to understand
the features and differences between the two. This article describes what is a
Joint Hindu Family and a Coparcenary under Mitakshara and Dayabhaga school
of law, respectively, and then highlights the difference between the two along
with a tabular description. 

Mitakshara School of Law

It is one of the Hindu law schools that govern the succession of property in a
Hindu family. Joint Hindu Family is an important concept under Mitakshara
school under which the son, grandson and grandson’s son have a right by birth
in the family property. It is further divided into 4 schools:

 The Benaras school;

 The Mithila school;
 The Maharashtra school;
 The Dravida school.

What is a Joint Hindu Family?

Joint Hindu Family is an inevitable and fundamental concept of the Hindu family
law which in present-day is governed by the Hindu Succession Act, 1956. It is a
normal condition of Hindu society. For a Hindu, it is a never-ending process, if in
one generation it is brought to an end by the means of a partition, it comes
back into existence in the next generation automatically. This rule gives support
to the presumption that every Hindu family is a Joint Hindu family. 
It is presumed that the family continues to be a joint family if it is joint in affairs
of food, worship, and estate as observed in Rukhmabai v. Lala
LaxmiNarayan;  Rajagopal v Padmini. However, if a family is not joint in food
and worship, i.e. even if they live separately, they constitute a Joint Hindu
family provided they are joint in the estate. A Joint Hindu Family is neither a
corporation nor a juristic person as they do not have a separate legal entity
from that of its members as held in the case of Chhotey Lal and Ors. v. Jhandey
Lal and Anr. It is a unit and is represented by the Karta of the family in all
matters.

Composition

It consists of all the family members i.e. all the male members descended
lineally up to any generation from a common ancestor together with their
mothers, wives, widows, and unmarried daughters as observed in Surjit Lal
Chhabda v. CIT. A daughter remains a part of her parents’ joint family, till the
time she is unmarried. Once she gets married, she becomes a part of her
husband’s Joint Hindu family. 

If the daughter is deserted by her husband or becomes a widow, and returns to

her father’s home permanently, she again becomes a part of that Joint Hindu
family. Her children, however, remain a part of their father’s Joint Hindu family
and do not become a part of the mother’s father’s Joint Hindu family. It was
observed in the case of Gur Narain Das v. Gur Tahal Das that even an
illegitimate son of a male descendant will be a part of his Joint Hindu family.

Beginning 

It is pertinent to note that without a common ancestor Joint Hindu Family

cannot be brought into existence. The presence of a common ancestor is a
necessity for its beginning, but it is not necessary for its continuation i.e. the
death of the common ancestor does not bring the Joint Hindu Family to an end.
Upper links of the family are removed and lower links are added by marriage,
birth, or adoption of the child in the marriage. This process continues as long as
it does not become extinct. The members are bound by the fundamental
principle of Sapinda relationship(belonging to the same ancestors, up to three
and five lines of ascent from mother’s and father’s side, respectively) or family
relationship.      

Exit

The status of being a part of the Joint Hindu Family can be ceased in the
following cases:

 By conversion to another religion or faith.

 By marriage to a non-Hindu(a person who is not Hindu as per Section
2 of the Hindu Marriage Act, 1955 which include a Muslim, Jew, Parsi
or Christian by religion).
 By being given in adoption to a third party by the competent parents.
  By marriage of a daughter.

Important points
Position when there is only one male member in the family

In such a case the Joint Hindu family can still continue to function as the
requirement of a male member is essential to start a Joint Hindu family and not
for its continuance. It is not necessary to have at least two or more male
members in the family to make it a Hindu Undivided family as a taxable entry.
In the case of CIT v. Gomedalli Lakshminarayan it was held that even if the
coparcenary does not exist in a family still that family continues to be a Hindu
Undivided family.

Position when there are only female members (widow)

On the death of the sole male member, a joint Hindu family can continue to
exist at the instance of already existing female members of the family. The term
‘continuation’ is different from starting or forming a joint family for the first
time.

In the case of CIT v. Sarwan Kumar, the Supreme Court held that on the death
of the last surviving male member, the other family members can continue to
be a Joint Hindu family, even if they are not coparceners. The death of the male
member is a self declaratory fact that there was an existence of male members
in the joint family. 

The court in the case of Attorney General of Ceylon v. Arunachalam

Chettiar held that as per the law, so long as the female members of the family
can add a male member to the family, a joint family does not come to an end.

Illustration:

 If A and B are brothers, C and D are wives of A and B respectively.

Four of them together constitute a Joint Hindu family.
 If A and B die in a car accident then also, C and D can continue the
Joint Hindu family provided, if either of them is already pregnant with
the child of their husband or if they decide to adopt a male child.

Therefore, the test laid down is the potential of the female members to add a
male member to the family either by natural means or lawful means as
observed in Ashok Kumar Ratanchand v. CIT also. 

Position when there are only daughters

Before the Hindu Adoption and Maintenance Act, 1956:

As discussed above that female members should have the capacity to add a
male member in order to continue the Joint Hindu family. However, before 1956
daughters did not have the capacity to add a male member to her father’s joint
family. The reason being that she could give birth to a legitimate child only after
her marriage, and once she is married she becomes a part of her husband’s
joint family and ceases to be a part of her father’s joint family.

After the Hindu Adoption and Maintenance Act, 1956 The Act gave power and
permission to even a single woman to adopt a child. As per law, the status of an
adopted child is the same as that of a child born into the family. Now, the
woman could add a male member to her father’s Joint Hindu family without
getting married. Therefore, an adopted child can be maintained by a single
parent also.

After the 2005 amendment in the  Hindu Succession Act, 1956, the amendment

to the Act gave the right to a daughter to be a coparcener and now she can not
only continue the Joint Hindu family but also constitute one with her father and
brothers. 

Position when there are only husband and wife

As there is a chance of adding a male member or basically a coparcener to the

family by the couple, therefore they can constitute a Joint Hindu Family. There
is a conflict in the judicial opinion on the question, whether husband and wife
can form a joint family as per revenue statutes to take advantage of the
exemption from tax as Hindu Undivided Family? 

In the case of T. Srinivasan v. CIT, a partition took place in a Joint Hindu Family
and the son took his share. For a certain while, he filed his returns as an
individual until he got married. The question came into consideration when his
wife was pregnant. It was held that only when the son is born, he becomes a
member of the joint family. 

In Surjit Lal’s case, it was held that the property which a coparcener obtains on
the partition does not become for all times his individual property. If he is
married he has an obligation to maintain his wife. If he has children then he is
obligated to maintain his unmarried daughter and minor son. If a son is born he
is entitled to a share in ancestral property. The court also held that the absence
of a history of jointness between a man and his ancestors should not cause any
problem in forming a Joint Hindu family with his wife.

It is the duty of the husband to maintain his wife as per Section 18 of the Hindu
Adoption and Maintenance Act, 1956. The wife can, therefore, claim
maintenance from the husband’s separate as well as ancestral property.

Thus the individual while receiving property on partition and getting married
with no son or no children at all is considered as the Karta of the Joint Hindu
Family.

To conclude a husband and a wife can constitute a Joint Hindu Family as well as
Hindu Undivided Family.

What is Coparcenary?
The term ‘Coparcenary’ is used in matters related to Hindu Succession law. It is
a narrower part or institution within a Joint Hindu Family, It deals with property
related matters only i.e. the coparcenary property of a Joint Hindu Family 

Composition 

Unlike the Joint Hindu Family, coparcenary consists of all male lineal
descendants up to three generations from the last holder of the property.
Senior-most member is called the ‘last holder’ and from him up to three
generations i.e. son, son’s son, and son’s son’s son constitute the coparcenary.
There can be any number of male members in a particular generation.
Every member of the coparcenary is related to each other either by blood or
valid adoption. It is a laid rule that no person can become a coparcener by
marriage or any agreement to become a coparcener as coparcenary is a
creation of law as observed in Sudarshan v. Narasimhulu. As per the Hindu
Succession Act, 1956 no female member could be a coparcener but it was later
altered with 2005’s amendment to the Act. Now, Section 29A of the Hindu
Succession Act provides that a female is entitled to receive the same share in
the coparcenary property as that of a son.

Beginning 

Like a Joint Hindu Family, the presence of the senior-most male member is
compulsory to start a coparcenary. The presence of at least two male members
is necessary to constitute and even to continue a coparcenary. Just like a Joint
Hindu Family, in a coparcenary, upper links are being removed subsequently,
and lower links are added to the chain, provided there are at least two male
members(coparceners) maintaining the status of a joint family. 

A male member within the three generations from the last holder of the
property(total four generations) becomes a coparcener right from his birth i.e. it
is a ‘right by birth’ in the family property.

End

Coparcenary comes to an end either by the partition or by the death of all the
male members of the family or the sole surviving coparcener.

Important Points

 The existence of property is a must in a coparcenary. If someone

acquires his father’s property during his lifetime, after his death that
 particular property will be inherited by his son as Joint family property
and this will be continued further.
 Before 2005, only males had the right to be a coparcener.
 An insane son is also a coparcener but does not have a right to ask for
partition.
 Rule of survivorship applies to the coparcenary property i.e. when a
coparcener dies his interest in the joint family property devolves on the
surviving coparceners and not by the rule of succession. Since there is
a continuous addition and deletion of coparceners by birth and death
respectively, therefore there is a fluctuation of interest in the property
of every coparcener.

Illustration: ‘A’ has two sons- B and C. 

 In the case of a partition, they will get one-third share each.

 If ‘B’ dies, then the share of ‘A’ and ‘C’ will enlarge and become one-
half each as the share of ‘B’ also gets divided between the rest of the
Coparceners.
 Now, if two more sons ‘D’ and ‘E’ are born to ‘A’ and if now partition
takes place among A, C, D, and E, then each will get one-fourth share
of the property.

 Just like there can be more than one coparcenary within different
branches of a family, likewise, there can be coparcenary within a
coparcenary. 

Illustration:

 A has three sons- B, C, and D. A is the last holder of the property.

 If C and D have their separate property and one son is born to C and
two sons to D. The sons of D (and C) will get birthright not just in the
ancestral property headed by A but also in the sub-coparcenary that is
formed between sons of C and D.
In the case of Moro Vishwanath v. Ganesh Vithal, the court held that a partition
can be demanded only by one more than four degrees from the acquirer but it
cannot be demanded by a person who is at one more than four degrees
removed from the last owner. The reason behind this is that the coparcenary
extends to four degrees from the last owner. The Court explained the concept
with certain illustrations, which are as follows:

 Illustration 1:  

o If a family consists of A, the original owner and his lineal descendants

are- B (son), C (grandson), D (great-grandson). D has two sons- E and
F, E further has two sons.
o If B and C die for instance, in a car accident. Neither E and F are still
not entitled to ask for partition nor can they sue their father for the
partition.
o Now, if A also dies they can ask for partition as now they lie within the
category of coparceners.

 Illustration 2:

o If a family consists of A, the original owner and his lineal descendants

are- B (son), C (grandson). C has two sons- D1 and D2, D1 further has
two sons- E and F. E also has a son G.
o If B and C die for instance, in a car accident. After them D1 also dies,
then the two sons of D1(E and F) and a grandson(G) cannot ask for
partition because the property is inherited by D2 alone.

Point of differences
Illustration:

 If A, B, C, D, E, F, G, H and I are lineal male descendants with ‘A’

being the last holder of the family property.
  People of all the 8 generations together constitute a Joint Hindu Family
whereas till the time A is alive from him up to three generations, a
coparcenary is formed i.e. A, B, C, and D are coparceners.

Joint Hindu Family Coparcenary

It is a wider institution as it includes all-

It is a narrower institution as it includes
male lineal descendants from a common
only three male lineal descendants from
ancestor, it also includes their wives and
the last holder of the property.
unmarried daughters.

There is a four-generation rule i.e. males

There is no limitation of generations, it can within four generations from, and
extend to any number of generations. inclusive of the eldest member of the
family.

Only males can be coparceners and after

Every family member can be part of it 
2005’s amendment daughters were given
including females and illegitimate sons.
the right to be a coparcener.

Even after the death of all coparceners or

male members, it does not ipso facto mean
that Joint Hindu Family has come to an Coparcenary comes to an end when all
end. As long as a female member has the the male members or coparceners die.
right to add a new male member to the
family, it continues.

In a Joint Hindu Family, the existence of In a Coparcenary, the existence of

property is not essential. property is very essential.

The rights and interests of the joint family Rule of survivorship is followed and not
members are determined by the Law of the law of succession as on the death of
 a coparcener, his interest in the property
Succession.
devolves on surviving coparceners.

The rights of coparceners are very wide,

viz, Right to partition, and right to
Members have limited rights, viz, of
alienate. Each coparcener is the owner of
maintenance and marriage expenses of the
the entire property but no one can set up
unmarried daughters.
an individual title to any part of the
property.

Every Joint Hindu Family is not a Every coparcenary is a Joint Hindu

coparcenary. Family.

Dayabhaga School of Law

The concept of Joint Undivided Family remains the same in Dayabhaga school of
law as that in Mitakshara school of law except for the fact that in Dayabhaga
school, son, grandson and grandson’s son do not have right by birth in the
family property. In a real sense, there is no concept of Coparcenary in
Dayabhaga law school as it does not recognize the rule of survivorship i.e. there
is an absence of right by birth in the property of the joint family. It does not
recognize any difference between ancestral and separate property. Both the
separate and ancestral property is divided as per the law of succession. Sons
cannot ask for partition of the joint family property. On the death of the
coparcener, his share does not pass to surviving coparceners but goes to heirs.

Situation after the 2005 Amendment

The amendment to the Hindu Succession Act of 1956 in the year 2005 was seen
as a remarkable step towards eradication of gender inequalities and bringing
gender and social parity. The most significant amendment was the abolition of
Doctrine of Survivorship and providing the right to daughters whether married
or unmarried to be a coparcener and have a right by birth in the joint family
property. Section 6(1) of the Hindu Succession Act, 2005 provides that in a
daughter of a coparcener brought up as per Mitakshara school shall have:-

 Right by birth to become a coparcener in her own right in the same

way as a son. Marital status of a daughter does not matter.
 Same rights as that of a son in the coparcenary property.
 Same liabilities as of that of a son with respect to the coparcenary
property.
 Any sort of reference to Mitakshara coparcener shall also include a
reference to the daughter as well.