A CRITICAL ANALYSIS OF THE RIGHT OF COPARCENER

PROJECT SUBMITTED BY:

SHUBHAM

B.A LL.B (Hons.)

Roll No. 1764

SUBMITTED TO:

MRS. POOJA SRIVASTAVA

MARCH, 2019

FOR FAMILY LAW II FOR THE DEGREE OF BA LL.B (HONS.)

CHANAKYA NATIONAL LAW UNIVERSITY

NYAYA NAGAR, MITHAPUR, PATNA-800001

1
 DECLARATION

I hereby declare that the project entitled “A CRITICAL ANALYSIS OF THE RIGHTS OF

COPARCENER” submitted by me at CHANAKYA NATIONAL LAW UNIVERSITY is a

record of bona fide project work carried out by me under the guidance of our mentor Mrs.

Pooja Srivastav. We further declare that the work reported in this project has not been

submitted and will not be submitted, either in part or in full, for the award of any other degree

or diploma in this university or in any other university.

__________

(SHUBHAM)

Roll no. – 1764

2
 ACKNOWLEDGMENT

I hereby declare that the project entitled “A CRITICAL ANALYSIS OF THE RIGHTS OF

COPARCENER” submitted by me at CHANAKYA NATIONAL LAW UNIVERSITY is a

record of bona fide project work carried out by me under the guidance of our mentor Mrs.

Pooja Srivastava. We further declare that the work reported in this project has not been

submitted and will not be submitted, either in part or in full, for the award of any other degree

or diploma in this university or in any other university.

__________

(SHUBHAM)

Roll no. – 1764

3
TABLE OF CONTENTS
1. INTRODUCTION………………………………………………………. 05

2. CHAPTER 1: Introduction to Joint Hindu Family

& the influence of Coparcenary…………………………………………07-08

3. CHAPTER 2: Coparcenary & Separate Property……………………….09

4. CHAPTER 3: Management & Enjoyment of

Coparcenary property……………………………………………………10-11

5. CHAPTER 4: Rights of a Coparcener…………………………………...12-14

6. CHAPTER 5: Coparcener’s Power of Alienation………………………..15-21

7. CHAPTER 6: Judicial Pronouncements………………………………….22-23

8. CHAPTER 7: Testamentary Provisions in Hindu

Succession Act: A critical Analysis………………………………………24-26

9. THE CONCLUSION……………………………………………...………26

10. BIBLIOGRAPHY…………………………………………………………27.

4
 INTRODUCTION

Coparcenary is a term often used in matters related to the Hindu succession law, and coparcener
is a term used for a person assumes a legal right in his ancestral property by birth. To understand
this better, we have to first understand the term Hindu Undivided Family (HUF).

According to the law, an HUF is a group of people, who are the lineal descendants of a common
ancestor. This group would include the eldest member and three generations of a family, and
all these members are recognised as coparceners. According to the law, all coparceners acquire
a right over the coparcenary property by birth, while their share in the property keeps on
changing with new additions into the family. Apart from Hindus, people from other religions
such as Jainism, Sikhism and Buddhist are also governed under HUF. It must be noted here
that coparcenary applies on both ancestral as well as self-acquired property. However, unlike
ancestral property where all coparceners have equal rights over the property, a person is free
to manage his self-acquired property through a will. Before an amendment was made in the
Hindu Succession Act, 1956, in 2005, women did not enjoy a right on their ancestral property
post their marriage as they were not considered coparceners. However, after the amendment
— the Hindu Succession (Amendment) Act, 2005 — women have been accepted as
coparceners.

A Hindu Coparcenary is a much narrower body than the joint family, which is purely a creation
of law. The conception of a joint Hindu family constituting a coparcenary is that of a common
male ancestor with his lineal descendants in the male line within four degrees counting from,
and inclusive of, such ancestor. It includes only those persons who acquire by birth an interest
in the joint or Coparcenary property1. These are sons, grandsons and great grandsons of the
holder of the joint property for the time being. After the amendment of the 2005, a daughter
has been included as a coparcener along with the sons of the coparcener. Difference between
ancestral property and separate property is the interlinked with the concept of Coparcenary.
The property jointly inherited by a Hindu by birth along with his sons, grandsons and great
grandsons from his male lineage of ancestors is ancestral property2. All other property is
included under separate property.

1
Surjith Lal Chhaabda v. CIT Bombay AIR 1976 SC 109
2
Sundar Lal v. Chhittar Mal (1907) 29 All 1

5
AIMS & OBJECTIVE

1. To examine the Rights of the Coparcenar.

2. To study in detail the purview of Coparcenar and especially the role he plays in the
Hindu undivided family.

HYPOTHESIS

The Researcher presumes that each coparcener has an antecedent title to the said property.

RESEARCH METHODOLOGY
 The researcher would like to undertake the doctrinal method of research.

SOURCES OF DATA

 The researcher has used both, primary as well as the secondary sources to complete
the project.

LIMITATIONS
 There is a time limitation for the researcher to finish the research.
 The researcher is limited to his own self for the research.

6
CHAPTER 1
Introduction to Joint Hindu Family and the influence of
coparcenary.

JOINT HINDU FAMILY

A join Hindu family consists of all persons lineally descended from a common ancestor,
including their wives and unmarried daughters3. An undivided family is ordinarily a joint one
not only in estate, but also in food and worship4. After the separation of estate to the members
of the joint family, the family ceases to be a joint one. The Hindu family should at least
constitute two members5. Even if the total number of the male coparceners is temporarily
reduced into a single individual, the character of the property remains the same.

COPARCENARY

A Hindu Coparcenary is a much narrower body than the joint family, which is purely a creation
of law. The conception of a joint Hindu family constituting a coparcenary is that of a common
male ancestor with his lineal descendants in the male line within four degrees counting from,
and inclusive of, such ancestor. It includes only those persons who acquire by birth an interest
in the joint or Coparcenary property6. These are sons, grandsons and great grandsons of the
holder of the joint property for the time being. After the amendment of the 2005, a daughter
has been included as a coparcener along with the sons of the coparcener. Difference between
ancestral property and separate property is the interlinked with the concept of Coparcenary.
The property jointly inherited by a Hindu by birth along with his sons, grandsons and great
grandsons from his male lineage of ancestors is ancestral property7. All other property is
included under separate property.

3
Commissioner of Income-tax v Luxminarayan (1935) 59 Bom 618
4
Sri Ragunada v Brozoa Kishor (1876) 49 Mad 98
5
Krishna Prasad v CIT Banglore AIR 1975 SC 498
6
Surjith Lal Chhaabda v. CIT Bombay AIR 1976 SC 109
7
Sundar Lal v. Chhittar Mal (1907) 29 All 1

7
GENISIS OF COPARCENARY

(Consult the illustration given below)

A Hindu male A, with self acquired property without the help or financial support of his
ancestors has a son B. B with his three sons or daughters C, D and E and with their children F,
G and K. The main family will constitute the above mentioned members i.e. up to four
generations. I, J and K constitute branch families. All these families have one common ancestor
A. On the death of A, I and J will be added to the coparcenary. On A’s death the self acquired
property of A during A’s lifetime is inherited by B. B’s three children C, D and E takes a vested
interest in the property by reason of birth. This property inherited by B will become ancestral
property in B’s hands. After the death of A, his children C, D and E and their children F, G and
H are coparceners as regards the property.

It is to be noted that coparcenary is not always limited to four degrees from common ancestor.
A member of a joint family may be removed more than four degrees from common ancestor,
and yet he may be a coparcener. But the rule states that partition can only be demanded by any
member of a joint family, who is not removed more than four degrees from the last holder. On
the death, however of the last holder, he would become a member of the coparcenary, if he was
fifth in descent and would be entitled to a share in the partition. 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.

8
Table showing the illustration of a coparcenary in the Hindu family, available at
<http://www.payer.de/dharmashastra/dharma0915.gif >(last viewed April 27, 2010).

8
CHAPTER 2

Coparccenary and separate property

Section 30, Hindu Succession Act entitles a Hindu to make a testamentary disposition of his
interest in the joint family property. It doesn’t enable him to alienate his interest by way of
gift ir by any other mode, say sale mortgage, lease, exchange etc. These are the inter vivo
transactions. They differ from a will. Therefore where Hindu law refuses any Hindu the
permission to alienate his interest in the joint family in any of these modes, the restriction
cannot be taken as removed by implication from section 30 of the Hindu Succession Act.

A male member of the Mitakshara coparcenary was not authorised to make a will of this
interest in the joint family property before the commencement of HSA. The reason for the
disability was that on the death of a coparcener his interest in the coparcenary property
devolved by survivor ship on the surviving coparceners. There was nothing on which the will
could operate9. Any provision of this Act or any other law which renders such property
incapable of being disposed by will, stands overruled by this section.

All those properties of the deceased intestate that is heritable come under the term ‘property’
includes under the Act. It includes his self-earned property as also his share in the Mitakshara
coparcenary if he is survived by any of the female heirs or daughter’s son as mentioned in
Class I of the Schedule. It also includes the property that he might have inherited from his
grandfather or father after the Act came into force10.

9
Lakshman Dada Naik v. Ramchandra Dada Naik (1881) 7 IA 181
10
Extract from, Intestate Succession: Devolution Of Property After The Death Of A Hindu Without A Will,
Visited on May 5th at <http://www.legalserviceindia.com/article/l258-Intestate-Succession.html>

9
CHAPTER 3

Management and Enjoyment of Coparcenary Property

Although the preamble to the Hindu Succession declares that the act amends and codifies
Hindu law of intestate succession, yet third chapter deals with the testamentary succession
not implidly but boldly and to some extends radically. The effect of this provision is that
when a person bequeaths his or her property by will, the succession under the act is excluded
and the property passes to the testamentary heirs11.
Where a Hindu dies after the commencement of the Amendment Act 2005, his interest in the
property of the joint Hindu family governed by the Mithakshara Law shall devolve by
testamentary or intestate succession and not by survivorship and the coparcenary property
shall be deemed to have been divided as if a partition had taken place. Any property to which
a female Hindu becomes entitled to under this Amendment Act 2005, shall be a property
capable of being disposed of by her by testamentary disposition i.e. by way of Will.

CHARACTERISTICS OF THE COPARCENARY PROPERTY

 Unity of ownership: The ownership of property is vested in the whole body of the
coparceners.
 In determinability of shares: The interest of a coparcener in the property is fluctuating
and is capable of being enlarged by deaths in the family and liable to be decreased by
births in the family.
 Community of interest: No coparcener is entitled to any independent and exclusive
interest in the coparcenary property nor is he entitled to the exclusive possession of
any part of the coparcenary property. His right is that of an undivided interest.
 Rights by birth: Coparcenary members acquire interest in the property by birth under
Mithakshara law while under Dayabhaga, nobody inherits any interest by birth.

 Devolution of survivorship: One of the interesting features of Mithakshara

coparcenary is that on the death of a coparcener, his interest in the property passes on

11
Sadhu Singh v. Gudwara Sahib Narike (2006) 8 SCC 75

10
 to other coparceners by survivorship (i.e. to the members who are alive). In
Dayabhaga, the property devolves on the coparceners on the death of the holder.

ELEMENTS OF A COPARCENARY PROPERTY

 Ancestral property: The property which descends from father, grandfather or father’s
father’s father.

 Property jointly acquired by the members of the joint family of HUF nucleus

 Separate property of a member donated to the joint cause with the intention of
abandoning all his separate claims on it, which becomes the property of joint family

 Property acquired by all or any of the coparceners with the aid of joint family funds

THE RIGHTS OF THE COPARCENER ENJOYS IN RESPECT OF COPARCENARY

PROPERTY.

The rights are:

1. Community of interest and unity of possession of coparcenary property,

2. Share of income,

3. Joint possession and joint right of maintenance out of the family estate,

4. right to enforce partition,

5. Right of survivorship.

11
CHAPTER 4

RIGHTS OF A COPARCENER

(1) COMMUNITY OF INTEREST AND UNITY OF POSSESSION: No coparcener is

entitled to exclusive possession of any part of the coparcenary property, nor is any coparcener
entitled to any special interest in such property. There is community of interest and unity of
possession between all the members of the family.

(2) SHARE OF INCOME: A member of a joint family cannot at any given moment,
predicate what his share in the joint family property is. Such a share is defined only when a
partition takes place. The reason is that, his share is a fluctuating one which is liable to be
increased by deaths and diminished by births, in the family. It follows from this that no
member is entitled to a definite share in the income of the property. According to the
principle governed in the Hindu undivided family the whole income of the joint family
property must be brought to the common purse of the family

(3) JOINT POSSESSION AND ENJOYMENT: Each coparcener is entitled to joint

possession and enjoyment. Of the family property. If he is excluded from doing so, he can
enforce this right by way of a suit. He is not however bound to sue for partition. In a suit for
joint possession the court would declare his right to joint possession and further direct that he
should be put into such joint possession.

(4) RIGHT AGAINST EXCLUSION FROM JOINT FAMILY PROPERTY: If a

coparcener is excluded from other coparceners from the use or enjoyment of the joint
property the court may by an injunction restrain such coparceners from obstructing him in the
enjoyment of the property.

(5) RIGHT OF MAINTENANCE AND OTHER NECESSARY EXPENSES: Every

coparcener is entitled to be maintained out of the estate of the family. For this purpose he is
entitled to the receive from the coparcenary property, maintenance for himself his wife and
children, as also for those whom he is bound to maintain. Besides such maintenance a
coparcener is also entitled to get money from the coparcenary property for the purpose of the
marriage of his children and for the performance of the shradha and other religious
ceremonies.

12
(6) RIGHT TO RESTRAIN IMPROPER ACTS: Every coparcener has the right to restrain
improper acts on the part of the other coparceners, where such acts cause substancial injury to
his rights as a member of the family.

(7) RIGHT TO ENFORCE PARTTION: Every adult coparcener is entitled to enforce

partition of a coparcenary property. He cannot however file a suit for a declaration of the
amount of his share as he has no definite share until partition.

(8) RIGHT TO ACCOUNT: A coparcener has no right to ask for the accounts from the
manager as regards his dealing with the coparcenary property. And the income thereof.
Unless of course such coparcener is suing for a partition in which case he would have such a
right.

(9) RIGHT OF ALIENATION: No coparcener can dispose of his undivided interest in

coparcenary property by way of gift.

(10) RIGHT TO IMPEACH UNATHORISED ALIENATION: Every coparcenaer has

the right to impeach an alienation by the manager, or any other coparcener, in excess of their
powers. Such an alienation can be impeached only by a coparcener or by a transferee who has
acquired the entire interest of a joint family in the property alienated.

(11) RIGHT TO RENOUNCE: A coparcener has the right to renounce his interest in the
coparcenary property. He can do so by expressing his intention to that effect and if he does so
no other formalities would be necessary. Such a renunciation must however in the favour of
the whole body of coparceners. Even if he renounces in favour of one individual member the
renunciation will operate for the benefit of all the coparceners.

(12) RIGHT OF SURVIVORSHIP: All the coparcener in the joint family have a right of
survivorship in respect of the joint family property. Thus if one coparcener dies his undivided
interest in such family passes by survivorship to the remaining coparceners, and not to his
heirs by succession.

(13) RIGHT TO MAKE SELF ACQUISITION: A coparcener has the right to acquire
property of his own and keep it as his self acquired property. The other coparceners would
have no claim on such property.

(14) RIGHT TO MANAGE: A coparcener who is the senior-most member of the family, is
entitled to manage the coparcenary property and business, and to look after the interests of

13
the family on behalf of the other coparceners, unless he is incapacitated from doing so by
illness or other like and sufficient cause.

14
CHAPTER 5

Coparcener’s power of alienation

Alienation is the capacity of a legal person to transfer a property or a property right to be sold
from to another. Restraints to alienation can be seen laws across the globe. In India, these
restraints are mostly seen in personal law concerning the testamentary succession of property.
Hindu Coparceners are a specific group of people, who according to Mitakshara law are not
allowed to alienate their joint family property. To unearth the logic behind this legal fiction, it
is necessary to trace back the history of Smritikars in Hindu law. Smritikars were those people
who documented the customs of different communities and emphasised that codes of morality
are not fixed by some divine authority, but must evolve with respect to the changing
requirements of generations and communities. They provide the commoners a code of conduct
which is considered to be the most authoritative of all. Even though they didn’t hold any
punitive powers, their influence depended solely on the voluntary internalisation of such value
systems by the groups to which they addressed themselves to, and people's respect for their
judgment12. Smritikars went on to state that the essence of a coparcenary under the Mitakshara
School of Hindu Law is community of interest and unity of possession.

TYPES OF TESTAMENTARY DISPOSITION

Transfer or gifting of any property under the terms of a will by a testator is called a
testamentary disposition. The term ‘testament’ is derived from testatio mentis, it testifies the
determination of the mind. It is the legal declarations of a man’s intentions which will be
performed after his death. Five types of testamentary disposition are widely recognized,
which include,

i. Gift: Gifting in simple terms is defined as the legal transferring of assets to one person
to another.

ii. Legacy: Testamentary gift of personal property, traditionally of money but may be
real or personal property13.

12
Madhu Kishwar, From Manusmriti to Madhusmriti Flagellating a Mythical Enemy, The education council on
Indian traditions., visited on April 27, 2010 < http://www.infinityfoundation.com/ECITmythicalframeset.htm>
13
Legal Estate Definition, Business Dictionary .comViewed at 24 th April 2010,
<www.businessdictionary.com/definition/legal-estate.html>

15
 iii. Life estate: A concept used in common and statutory law which designates the
ownership of the land for the duration of a person’s life. In legal terms it is
an estate in real property that ends at death14.

iv. Demonstrative legacy: A gift of a specific sum of money with a direction that is to be
paid out of a particular fund15.

DEED OF WILL

The law of coparcener’s power of alienation is the product of judicial legislation. The relaxation
of the old rule was done in section 30 of the Hindu Succession Act, 1956. Section 30 confers
a right upon every Hindu to dispose of his property by a will or by any other testamentary
disposition. The expression ‘Will’ has been defined by section 2(h) of the Indian Succession
Act, 1925 as,

‘The legal declaration of the intention of a testator with respect

to his property which he desires to be carried to effect after
death.’

The present section says that the disposal of property by will has to be made in accordance
with the provisions of the Hindu Succession Act, 1956. It permits a male Hindu to dispose his
will in a Mitakshara coparcenary property. The most significant fact which may be noticed in
this connection is that while the Legislature was aware of the strict rule against alienation by
way of gift, it only relaxed the rule in favour of disposition by a Will the Interest of a male
Hindu in a Mitakshara coparcenary property. For some time a notion existed that this provision
granted a Hindu coparcener the right to dispose of his share in the coparcenary property by a
will, which was against the tenets of the normal Hindu law relating to Hindu coparcenary
property. But the truth is although Section 30 makes a striking departure from the existing law
governing coparceners, it does not destroy the existence of a coparcenary, but all that it does is
to grant the right of testamentary disposition to a Hindu coparcener which he did not enjoy
earlier to this enactment.

14
Will (law), Absolute Astronomy,Viwed at 27th April 2010,
<http://www.absoluteastronomy.com/topics/Statute_of_Uses>
15
Supra Note 9

16
ESSENTIALS OF A WILL

 Legal declaration

 Disposition of property

 Takes effect after death

CLASSIFICATION OF WILL AND GIFT IN HINDU LAW

There are certain restrictions on the members of a coparcenary, one of them being that a
coparcener cannot dispose of his undivided interest in the coparcenary property by gift nor can
he alienate his interest even for value except in Bombay, Madras and Madhya Pradesh. The
Legislature did not, therefore, deliberately provide for any gift by a coparcener of his undivided
interest in the coparcenary property either to a stranger or to another coparcener. Therefore, the
personal law of the Hindus, governed by Mitakshara School of Hindu Law, is that a coparcener
can dispose of his undivided interest in the coparcenary property by a Will, but he cannot make
a gift of property, not even of his own interest in the property. Such transaction being void
altogether there is no estoppel or other kind of personal bar which precludes the donor from
asserting his right to recover the transferred property16.A coparcener, who has attained the age
of majority with a sound mind, can make a will in the presence of two witnesses to dispose off
his moveable/immovable property. The testament will only come to effect after the death of
executant and subsequently property will go to the beneficiaries. Gifting would give effect to
testament immediately. Under section 30 of the Hindu Succession Act, 1956 a coparcener may
dispose of his undivided interest by will. It is a settled law that a coparcener cannot dispose of
his undivided interest in the joint family property by gift inter vivos.

RESTRICTIONS ON A WILL (Acc. to Indian Succession Act, 1925)

 Transfer to an unborn is invalid - S.113

 Transfer made to create perpetuity - S.114

 Transfer to a class some of whom may come under above rules. - S.115

 Transfer to take effect on failure of prior Transfer. - S.116

16
Sridhara Babu, Karnataka Land Laws, Viewed at 28th April 2010, <http://karnatakalandlaws.blogspot.com/>

17
INVALID WILLS (ACC. TO Indian Succession Act, 1925)

 Wills invalid due to fraud, coercion or undue influence - S.15, 16,17

 Wills Void Due To Uncertainty - S.89

 Will Void Due To Impossibility Of Condition - S. 124

 Will void due to illegal or immoral condition - S.127

DEED OF GIFT: NOT VALID - THE CASE OF Baba v. Timma (1884)

The personal Law of the Hindus governed by Mitakshara school of Hindu Law is that
a coparcener can dispose of his undivided interest in the coparcenary property by a
will but he cannot make a gift of such interest. In the leading decision on the point is
the case of Baba v. Timma17, where it has been held that a Hindu father, if
unseperated, has no power, except for purposes warranted by special text, to make a
gift to a stranger of ancestral estate, movable or immovable. In that case, the gift was
made by the father to a stranger to the detriment of the son’s right in the property
gifted. It was held that under the Hindu Law a voluntary alienation by gift of joint
family property could not be made by an undivided coparcener, unless permitted by
an express text. Thus, the cumulative effect, of Baba’s case is that a coparcener
cannot make a gift of his undivided interest in the coparcenary property either in
favour of a stranger or in favour of his relations18.

DEED OF GIFT: VALID IF CONSENTED – THE CASE OF A.Perumalakkal v. Kumaresan

Balakrishnan and Ors (1967)

A gift by a coparcener to another coparcener is not valid, as are gifts without the consent of the
coparceners, but valid if done is the only other coparceners consent to the arrangement, which
they may well do by their mere acquiescence and adopting the transaction. The cases bearing
out of this are numerous19. In the leading cases of G. Suryakantam v.G. Suryanarayanamurthy
and Ors20and A.Perumalakkal v. Kumaresan Balakrishnan and Ors21 it was decided that by an

17
ILR ( 1884 ) 7 Mad 357 ( FB )
18
Ponnusami v. Thatha and Ors., ILR 9 Madras, 273; Ramanna v. Venkata, ILR 11 Madras 246; Rottala
Rungunatham Chetty v. Pulicat Ramasami Chetti, ILR 27 Madras, 162; Mayne’s Hindu Law, Eleventh Edition,
Article 382 and Mulla’s Hindu Law, Fiteenth Edition, Article 258, referred to.
19
Seth Lakshmi Chand v. Mt. Anandi, (1926) AIR P.C 54, Gunfayya Hammant v. Shriniwas Narayan (1937)
AIR Bom. 51
20
AIR 1957 AP 1012
21
[1967] SC 560

18
alienation of his undivided interest in the coparcenary property, a coparcener cannot deprive
the other coparceners of their right to the property. This legal proposition was further
elaborated in the case of Babu Mother Savavva Navelgund and Ors. v. Gopinath22 which said
that an individual member has no definite share in the coparcenery property. The object of this
strict rule against alienation by way of gift is to maintain the jointness of ownership and
possession of the coparcenary property. Even though the Privy Council recognized alienations
by gift in the case of Suraj Bunsi Koer v. Sheo Proshad Singh and Ors23, such alienations were
held by their Lordships to be inconsistent with the strict theory of joint and undivided Hindu
family. According to the old law, alienation by gift of undivided interest by coparcener is not
permissible. The legal aspect on this Court has now been finally settled by the Supreme Court
in the landmark case of Thamma Venkata Subbamma v. Thamma Rattamma24.

DEED OF GIFT: HELD VALID – THE CASE OF Thamma Venkata Subbamma v. Thamma
Rattamma (1987)

In the case of Thamma Venkata Subbamma vs. Thamma Rattamma25supreme court reversed
the decision in which, the respondent executed a deed of settlement which was a deed of gift
in purpose to in favour of another coparcener (his brother) conveying his entire undivided
interest in the coparcenary but reserving a life interest to himself and also providing that after
his death the other coparcener should maintain his wife. In a suit for partition and recovery of
the property filed by the widow of the coparcener who executed a deed of settlement on the
ground that the gift deed was a void document under the Hindu Law, the Trial Court held that
the deed of settlement was void and inoperative under the Hindu Law in the absence of
consent of the other coparcener. On appeal the High Court held that the deed of settlement
was valid. In this appeal by special leave the question for consideration was whether a gift by
a coparcener of his undivided coparcenary interest to another coparcener is void or not.
Respondents argued that it was a case of renunciation or relinquishment by Respondent of his
interest in favour of his brother and his sons. It was the intention of the donor that the
property might be enjoyed by his brother and his sons and, excepting that the donor had
reserved to himself a life interest, presumably for his maintenance, he gifted his entire
interest in the coparcenary property to his brother. The gift should be construed as

22
AIR 2000 Kant 27
23
ILR 6IA 88
24
AIR 1987 SC 1775
25
Supra. Note 20

19
relinquishment or renunciation of his undivided interest by the donor in favour of the other
coparceners. Although the gift is ostensibly in favour of his brother (beneficiary), the donor
really meant to relinquish his interest in the coparcenany in favour of both his brother and his
sons. The gift was, therefore, valid construing the same as renunciation or relinquishment by
respondent of his interest in the coparcenary and, accordingly, the consent of other
coparceners was immaterial. In the result, the conclusion arrived at by the High Court was
affirmed by Supreme Court though on a different ground.

Dismissing the appeal by the widow, it was held by Supreme Court that a gift made by the
coparcener to his brother should he construed as renunciation of his undivided interest in the
coparcenary in favour of his brother and his sons, who were the remaining coparceners. A
gift was, therefore, valid and consent of other coparceners was immaterial.

SALE AND MORTAGE

According to Bombay, Madras and Madhya Pradesh high courts a coparcener has power to
sell, mortgage or otherwise alienate for value his undivided interest without the consent of
other coparceners26. In the rest of Mitakshara jurisdiction such alienations are not permitted
and a coparcener has no power to alienate his undivided interest by sale or mortgage, without
the consent of other coparceners27.

DAYABAGA SCHOOL

Under Dayabaga law, since every coparcener has an ascertained and specified share, he can
alienate his value or gratuitously. Obviously he can dispose of his own share and not of
others except with their consent. He can also lease out his portion of estate.

SOLE SURVIVING COPARCENAR

A sole surviving coparcener has full right of alienation of the joint family property,
but if at the time of alienation another coparcener is in the womb, on his birth, he can
challenge such alienation. When the property passes on to the sole surviving
coparcener, it assumes the character of separate property as long as he doesn’t have a
son. The sole surviving coparcener has the full power of alienating the property the
way he likes, by sale, by mortgage or gift since at the time of alienation there is no

26
Pandu v. Goma AIR 1919 Bom 84
27
Lakshmi v. Kala AIR 1977 All 509

20
 other member who has joint interest in the family property28. Such alienation cannot
be challenged by a subsequently born or adopted son. But if another member was in
the womb of his mother at the time of alienation, the sole surviving coparcener
doesn’t have the power of alienation, ad if alienation has been made, such a member
can challenge the alienation or he may ratify it on attaining majority. This power is
not fettered by the contingency of an adoption being made by a widow in the family, a
contingency which may operate at all.

28
Guramma v. Mallapa AIR 1964 SC 510

21
CHAPTER 6

Judicial Pronouncements
Kokila v. Swathanthira 2003 Mad SCC 69

In this case, question before the court was that whether the testamentary disposition of the
father amongst his sons and their acceptance of the will would anyway affect the
survivorship. In the present case as the will was executed before the existence of the act, the
Will left by father is not valid in the eye of law and that Will does not have the effect of
destroying the right of survivorship. Sec.30 of Hindu Succession Act, 1956 is prospective. It
cannot validate the Will made by father, who died prior to coming into force of the Act. Thus
the property with the father was devolved upon the sons by way of survivorship.

Pavitri Devi And Anr. vs Darbari Singh And Ors 1993 (3) ALT 25 SC

One Brahmadeo Singh, the son of Tuso Singh filed partition Title Suit against his brothers
and their heirs claiming 1/6th share in the coparcenary properties mentioned in schedules
attached to the plaint. The trial court dismissed the suit. The appellant, Pavitri Devi, filed an
application for substitution of her and her son as legal representatives. Her claim has been
founded on two grounds, namely as the daughter of Brahmadeo Singh as well as the
registered gift deed Ex.2 dated August 5, 1980 executed by her father giving his entire share
in the joint family property and put them in possession of 9.96 acres of land. Appellants
contended that Brahmadeo Singh had power to dispose of his undivided share in the joint
family property by testamentary disposition including by way of gift to his daughter. The
interest held by him in the coparcenary property could be bequeathed by the gift deed.
Section 6 of the Act provides that when a male Hindu dies, after the commencement of this
Act, having at the time of his death an interest in a Mitakshara coparcenary property, his
interest in the property shall devolve by survivorship upon the surviving members of the
coparcenary. If the deceased had left behind him a surviving female relative specified in
Class I of the Schedule, the interest of the deceased in the Mitakshara coparcenary property
shall devolve by testamentary or intestate succession, as the case may be, under the Act and
not by survivorship. Therefore by operation of Section 30 he was entitled to dispose of his
undivided share and the interest in the coparcenary by testamentary disposition. Even though
the court recognised the fact that Pavitri Devi and her son were the legal representatives i.e.
she is a successor in interest, the court rejected their claim of the appellant on that premise.

22
Mitakshara law by which the Brahmadeo Singh was governed, he had no power to make gift
of his undivided interest in the coparcenary property to his concubine. But a gift by one
coparcener of his undivided share to another coparcener, to the exclusion of the others is not
invalid.

Thamma Venkata Subbamma vs. Thamma Rattamma ILR 6IA 88

This was a landmark case in which Supreme Court for the first time validated a gift deed
within the institution of coparcenary. Before this judgment, the deed of gift was prohibited in
the case of ancestral property governed by the Mitakshara School Family in Hindu Law. A
coparcener in a Joint Hindu executed a deed of gift in favour of another coparcener (his
brother) conveying his entire undivided interest in the coparcenary but reserving a life
interest to himself and also providing that after his death the other coparcener should
maintain his wife. The widow of the coparcener filed a suit of partition against the one who
executed a deed of gift on the ground that the deed of gift was a void document under the
Hindu Law, the Trial Court held that the deed of gift was void and inoperative under the
Hindu Law in the absence of consent of the other coparcener. On appeal the High Court held
that the deed of settlement was valid. In this appeal by special leave the question for
consideration was whether a gift by a coparcener of his undivided coparcenary interest to
another coparcener is void or not. The argument of the respondent was that it was a case of
renunciation or relinquishment of a coparcener's interest in favour of his brother and his sons.
Dismissing the appeal it was held that a gift made by the coparcener to his brother should he
construed as renunciation of his undivided interest in the coparcenary in favour of his brother
and his sons, who were the remaining coparceners. A gift was, therefore, valid and consent of
other coparceners was immaterial.

23
CHAPTER 7

Testamentary provision in Hindu Succession Act: A critical analysis

Prior to the Succession Act, neither under the customary law nor under the Madras Act, nor
under the Indian Succession Act, the interest of a coparcener in a Hindu Joint Family could
have been disposed of by testamentary disposition. But s. 30 of the Succession Act made a
definite change in the law by enabling a member of a coparcenary to dispose of his interest in
the Hindu Joint Family coparcenary properties by a will.

The first thing to be noticed is that on the demand for partition there is a division in status, and
though partition by metes and bounds may not have taken place, that family can thereafter
never be considered as an undivided family, nor can the interest of a coparcener be considered
to be an undivided interest. It is a well-established principle in, the Hindu Law that a member
of a joint Hindu family has a right to, intimate his definite and unambiguous intention to the
other members of the joint family that he will separate himself from family and enjoy his share
in severalty. Such an unequivocal intention communicated to the, others will amount to a
division-in status and on, such division he will have a right to get a de facto division of his
specific share of the joint family property, in which till then all of them had an undivided
coparcenary interest, and in which none of them could claim that he had any right to any
specific part thereof. Once the decision to divide has been unequivocally expressed and clearly
intimated to his co- sharers, whether or not the other co-sharers agree, an immediate severance
of the joint status is effected arid his right to obtain and possess the share to which be is
admittedly entitled becomes specified.

THE AMENDMENT OF 2005

The recent amendments in the Hindu Succession Act, has led substantive change in the
women’s right to property after a long gap of forty nine years. For a long time inheritance laws,
assumed a tedious character mainly due to lack of political stability and courage to stand for
common good even if offends some existing fundamental ideas. The act has made the daughter
a member of the coparcenary. Agricultural property is no more protected and confined to men.
No doubt that this historical legislation will guide the country like a beacon, towards gender
equality and women empowerment.

24
DISCRIMINATION OF THE FAIRER SEX

The Hindu succession (Amendment) Act, 2005 has – by a radical amendment – given a
daughter of a coparcener a right by birth to become a coparcener in a Mitakshara property.
The property to which she became entitled is capable of being disposed of her by
testamentary disposition. A necessary corollary of this amendment to authorise a female
Hindu like a male Hindu to make a will or any other testamentary disposition of her interest
in the Mitakshara coparcenary property. In the absence of this amendment there would have
been litigation from the lowest court to apex court to settle whether a daughter is given only
the right by birth in the coparcenary property or also the right to bequeath her interest in the
property.

The widespread belief which existed after the passing of the 1956 Act was that the
discrimination between daughters and sons were eliminated with the passing of the act. Little
did the female population of the country realize that, this though seemingly a huge step in
favour of gender justice, was in fact more a sleight of hand. Section 10 of the act, distributed
the property of the Hindu male dying intestate equally among all the Class I heirs, as specified
in the schedule.

The roguery lies in customary Hindu law and concept of coparcenary. The Hindu succession
act retained coparcenary. In fact, Section 6 specifically declares that, on death, the interest of
a male Hindu in mitakshara coparcenary property shall devolve by survivorship to other
members of the coparcenary and not by succession under the Act29. However, it laid down that
the separate share of the deceased, computed through the device of deemed partition just before
his death, would devolve according to the Succession Act. The act failed to explain the logic
behind such an exclusion which would take major share of the daughter’s property even though
she is entitled to half share. The inequality which existed between son and daughter has now
been removed by the amendment. For centuries, Hindu fundamentalists have been citing
spiritual reasons and inviolate customs as a ground for this discrimination and blatant
preference for sons in this society. Even though justice has been served to deprived daughters
across the country to a larger extend, the position of the mother vis-à-vis the coparcenary stays
the same. Her claim is reduced into left out portion after the notional partition and be entitled

29
Asha Nayar-Basu , Of Fathers And Sons, Viewed at 28th April, 2010
<http://www.telegraphindia.com/1051011/asp/opinion/story_5331519.asp>

25
to an equal share with other Class I heirs only from the separate share of the father computed
at the time of the notional partition.

THE CONCLUSION

While working on this project, one quintessential of the questions that passed through minds
was, whether this provision provided enough utility, the society demands?

The transferring of the power to make will or even gift to a coparcener will ensure those values
which kept our families together or is it just another provisions to meet with commercialisation
of our families and property they hold. Here we have Muslim model of will, which ensures that
only 1/3rd of the property is passed through the deed of will and rest is passed by intestate
succession. Analysing the current setup of our society and growing criminal indent, it can be
inferred that Muslim law on testamentary succession is better suited to Indian conditions than
the present Hindu law.

With the passing of the 2005 amendment, it has elevated the status of the women into a whole
new level. The property rights of the women were equalled to that of men. A Woman now
posses the right to dispose the coparcenary property according to her will. She can also gift the
property to any of the coparceners during her life time, but keeping a life-estate for herself
intact.

26
BIBLIOGRAPHY

BOOKS :

1. MORDERN HINDU LAW (CODIFIED & UNCODIFIED), ALLAHABAD LAW

AGENCY 23rd Edition 2016 By: Dr. Diwan Paras.
2. MORDERN HINDU LAW By: Dr. Nagpal R.C
3. HINDU LAW, LEXISNEXIS By: Mulla.

WEBSITES:

1. https://www.scribd.com/presentation/364190443/CO-PARCENERS-pptx
2. https://www.scribd.com/doc/79273496/Mitakshara-Hindu-Law
3. http://www.shareyouressays.com/knowledge/what-are-the-rights-and-duties-of-
coparceners-14-rights/117205

27