I.

COPARCENARY UNDER MITAKSHARA SCHOOL:

Coparcenary idea under Hindu Law was mainly by the male member of the family where just
children, grandsons and great-grandsons son who have a right by birth, who has an interest in
the coparcenary property. No female of a Mitakshara coparcenary could be a coparcener but
she will always be a part of the Joint Family. So under Mitakshara a son, son’s son, son’s son’s
son can a coparcenary i.e. father and his three lineal male descendants can be a coparcener.

For Example: Suppose in a Joint Family a Coparcenary will be consisting of four members
including father and his three male lineal descendants. They will be form a coparcenary with

A
B C D
the limit of four degree Fig. No. 1.

Fig. No. 1

Suppose if a Joint Family consist of eight male lineal descendants i.e. B, C, D, E, F, G, H, I.

then they will not be forming a coparcenary because we have understood from the above
example that only a coparcenary can be consisted on four degree, then B, C, D, E, F, G, H, I
Fig. No. 2will not form a coparcenary in the Joint Family. If they have to a coparcener in the
family then only four degree members should be taken into the consideration i.e. B, C, and D
Fig. No. 3 along with a common ancestor. Then if anyone of the coparcener dies, the next
person be added to the coparcenary subsequently.

A
A
A
A
B C D E F G H I

Fig. No. 2
 A
B C D
Fig. No. 3
A
A
In case Venugopala v. Union of Indi,AIR 1969 SC 1094, it was held that under Mitakshara
School of coparcenary is based on the notion of birth right of son, son’s son, son’s son’s son. All
this concept were followed by the Hindu Succession Act, 1956 but there was recent amendment
made to the Hindu Succession (Amendment) Act, 2005 that even a daughter is entitled to a
coparcenary under the joint family.
In Subhash Eknathrao Khandekar v. Pragyabai Manohar Birader, it was held that even a
daughter can be a coparcener according to the Section 6 of the Act, but widows of the son can’t
be a coparcener according to the Act.

The coparceners have the following rights:

• Right to maintenance: Every person in the joint family property is entitled to get
maintenance. Mainly the female members, the persons who doesn’t receive any share
from the family because of disqualification grounds, or unmarried daughters, then all
of them will be getting maintenance from the Joint family.

• Right to challenge alienation: The term alienation means transfer of property in case of
any legal necessity or benefit of the estate. The coparcener, karta and the sole surviving
coparceners have the right to alienate the property for the debts of the family or for any
kind of legal necessity of the Joint family. If the above mentioned person alienate the
property with any kind of improper intention or without any clear intention then the
coparcener can challenge the alienation.

• Right to partition: The coparcener’s have the right to partition in the joint family
property. Until the partition is done, the shares of the each individuals will be fluctuating
and unpredictable.
COPARCENARY WITHIN THE COPARCENARY:
In Mitakshara school there’s a concept of Coparcenary within the Coparcenary i.e. a separate
coparcenary’s can be existed within a coparcenary. Suppose a coparcener consist of P and
three sons Q, R and S. Q having two sons QS1, QS2. R having three sons RS1, RS2, RS3.
Suppose P and three sons Q, R and S acquire the separate property then when Q dies his

QS1 RS1

QS2 RS2

RS3
separate property can be acquired by his sons QS1, QS2 and they can form a separate
coparcenary themselves. This concept is called Coparcenary within the Coparcenary. Fig. No.
4.

Fig. No.4
MITAKSHARA SCHOOL DIVIDES PROPERTY INTO TWO CLASSES:

1. Unobstructed Heritage (apratibandha daya):

Property in which a person acquires an interest by birth is called
Apratibandha Daya or unobstructed Heritage. It is so called because the
accrual of the right to such property has no obstruction. The essential
feature of unobstructed heritage, according to Mitakshara Law is that
the sons, grandsons and great grandsons acquire an inherit in the
property inherited by birth. Ancestral property is therefore called as an
unobstructed heritage.

For eg: X inherits property from his father, and a Son Y is born afterwards,
Y becomes a Coparcener with his father X, i.e. from the time of his birth
and becomes entitled to the half undivided share is such property, the
property in the hands of X is unobstructed heritage because the
existence of X is no obstruction to Y acquiring interest in the property.

2. Obstructed heritage (Sapratibandh daya):

If however, the right to property accrues, not by birth, but on the death of
the last owner (without leaving any issue), such property is called
obstructed heritage or Sapratibandh daya. It is so called, because the
accrual of the right to such property is obstructed by the existence of the
owner of such property. Thus property which devolves upon brothers,
nephews, uncles etc., upon the death of the last owner, is obstructed
heritage. These relatives do not take any vested interest in the property
by birth. Their right to property arises only after the owner of the
property dies.

For eg: A inherits certain property from his brother and afterwards has a
 son, B, the property is obstructed in the hands of A. this is because B
does not get any interest in the property during A’s lifetime. It is only
after the death of A, that B will get the property as A’s heir. It is thus
conclude that existence of A is an obstruction to the accrual of any rights
in favour of B.

3. Ancestral property:
Ancestral property is a species of coparcenary property. Ancestral property
is that property which is acquired by unobstructed heritage. If property
is acquired by obstructed heritage, it is not ancestral property. Ancestral
property may be classified under six heads, as follows:
a. Property inherited from a paternal ancestor,
b. Property inherited from a maternal grandfather,
c. Property inherited from collateral or from females,
d. Share allotted on partition,
e. Property obtained by gift or will from a paternal ancestors,
f. Accretions.

Doctrine of Blending:
It sometimes happens that property which was originally the separate or self-
acquired property of a member of a joint family is voluntarily thrown by him into
the common stock with the intention of abandoning all claims of such property.
If this is done, such property becomes joint family property by operation of the
doctrine of blending.
In Goli V/S. The Commissioner of Gift Tax,
- It was observed that the act by which the coparcener throws his separate
property into the common stock is a unilateral act and a matter of individual
volition. As soon as he declares his intention to do so, the property assumes
the character of joint family property.
 However, clear intention to waive his separate property must be established
and such intention cannot be inferred from mere fact that he allowed other
family members to use such property jointly with himself.

II. COPARCENARY UNDER DAYABHAGA SCHOOL:

There is no concept of Joint Family under the Dayabhaga School as
compared to the Mitakshara. There is no coparcenary consisting of Father,
son, son’s son, son’s son’s son. The existing of Dayabhaga coparcenary
comes only after the death of the father, by that the son will inherit the
property of him and constitute a coparcenary. The concept of Dayabhaga is
followed only in certain parts of India like West Bengal, Assam etc. in this
school there is no right by birth given to son.
Dayabhaga coparcenary:
The concept of coparcenary under the Dayabhaga system is entirely different
from the one under the mitakshara law.
1. Sons do not acquire any right by birth: 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 the death of the father they take such of the property as is left by him,
whether separate or ancestral, as heirs and not by survivorship. As such
there can be no coparcenary in the strict sense of the word between a father
and sons according to the Dayabhaga law, so far as ancestral property is
concerned.
2. Absolute power of the father to dispose of ancestral property: Since the
coparceners under Dayabhaga have no right to property because of their
birth in the family, the father thus has absolute right to dispose of all kinds
of property, separate as well as ancestral, by sale, gift or through a will.
 Thus, there is no unity of possession and common ownership of
coparcenary property. In other words on the death of the father, where he
is survived by two or more of his sons, all of them inherit his property
jointly and hold it as tenants-in-common. Under Dayabhaga the father has
an absolute right of alienation of property, whether it is self-acquired or
ancestral.
3. No rights of partition or accounts against the father: According to
Dayabhaga, a son is not entitled to divide his father's joint land. The
explanation is that a son does not gain an interest in the ancestral property
by birth, according to Dayabhaga Law. For grandsons and great-grandsons,
the same law applies. Under Dayabhaga Law, the father is the absolute
owner of all the property and he can manage it in any way he likes.
4. Concept of ancestral property under Dayabhaga Law: 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 the death of the father they take such of the property as is left by
father.
5. Coparceners according to Dayabhaga Law: According to the
Dayabhaga law, the foundation of a coparcenary is laid on the death of the
father. It is only after the father dies, leaving two or more male issues can
form coparcenery.
Thus A dies, leaving three sons, B,C & D, all of them will form a
coparcenery, succeeding together to their father, A.
Further A dies leaving a son B, who has two sons, C & D. in this case, the
son B will not form a coparcenery along with his sons C & D. B only
succeeds to the ancestral or separate part of A, in which property C & D do
not get any interest by birth. However, after B dies, C & D will together
succeed to such property and they will form a coparcenery.