CHANAKYA NATIONAL LAW UNIVERSITY

MITHAPUR, PATNA (800001)

SESSION

2018-2023

TOPIC- “COPARCENER'S RIGHT TO RELINQUISH

INTEREST IN PROPERTY”
FINAL DRAFT SUBMITTED IN THE FULFILMENT OF THE
COURSE TITLED-

FAMILY LAW -2
SUBMITTED TO: SUBMITTED BY
Mrs. POOJA SRIVASTAVA RAHUL BARNWAL

(FACULTY OF FAMILY LAW) ROLL NO = 2033

SEMESTER = FOURTH

COURSE = B.B.A.LLB

SESSION = 2018-2023

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 DECLARATION BY THE CANDIDATE

I hereby declare that the work reported in the B.B.A.,LL.B (Hons.) Project Report entitled
“COPARCENER'S RIGHT TO RELINQUISH INTEREST IN PROPERTY” submitted at
Chanakya National Law University is an authentic record of my work carried out under the
supervision of Mrs. POOJA SRIVASTAVA. I have not submitted this work elsewhere for any
other degree or diploma. I am fully responsible for the contents of my Project Report.

SIGNATURE OF CANDIDATE
NAME OF CANDIDATE : RAHUL BARNWAL
CHANAKYA NATIONAL LAW UNIVERSITY, PATNA.

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 ACKNOWLEDGEMENT
I would like to thank my faculty Mrs. POOJA SRIVASTAVA whose guidance helped me a lot
with structuring my project.
I owe the present accomplishment of my project to my friends, who helped me immensely with
materials throughout the project and without whom I couldn’t have completed it in the present
way.
I would also like to extend my gratitude to my parents and all those unseen hands that helped me
out at every stage of my project.

THANK YOU,
NAME: RAHUL BARNWAL
COURSE: B.B.A., LL.B (Hons.)
ROLL NO: 2033
SEMESTER:4th sem

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Contents
1. INTRODUCTION ................................................................................................................. 5
CONSTITUTION OF HINDU JOINT FAMILY .................................................................. 5
CONCEPT OF COMPOSITE FAMILY ................................................................................ 6
2. CONCEPT OF A HINDU COPARCENARY ........................................................................ 8
INCIDENTS OF COPARCENERSHIP ................................................................................. 9
3. RIGHTS OF COPARCENERS ............................................................................................. 10
4.COPARCENER’S POWER TO RENUNCIATION OR RELINQUISH .......................... 13
5. RELATED CASES ................................................................................................................. 15
6. CONCLUSION ....................................................................................................................... 17
BIBLIOGRAPHY ....................................................................................................................... 18

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 1. INTRODUCTION

The Hindu joint family is a normal condition of the Hindu society. Its origin can be traced to the
ancient patriarchal system where the patriarch or the head of the family was the unquestioned ruler,
laying down norms for the members of his family to follow, obeyed by everyone in his family and
having an unparallel control over their lives and properties. Therefore, under Hindu law the joint
family system came first in historical order and the individual recognition of a person distinct from
the family thereafter. The ancient system generally treated the property acquired by the member
of the family as family property or the joint property of the family with family members having
one or the other right over it. With gradual transformation of the society and recognition of the
members of the family as independent in their own right, concept of separate property and rules
for its inheritance were developed. This dual property system, though considerably diluted 1, has
survived the lashes of time, the judicial and legislative onslaught and the Hindu society still
recognizes the joint family and joint family property as unique entities having no similar concept
alive elsewhere in the world.

CONSTITUTION OF HINDU JOINT FAMILY

The institution of a Hindu Joint Family2 is peculiar to the Hindu jurisprudence and has its origin
in ancient orthodox texts and writings of Smritikars etc. Though, it originated in the propagation
of the theory of despotism and autocracy in the father, yet by efflux of time, such a concept
considerably loped down so as to confer equal rights on his sons by birth. The introduction of
coparceners by birth into the family considerably whittled down the absolute power of the father.
Several other inroads into such unitary rights and privileges of the father, where incursions had to
be made with the growth of society and the appreciation of the value of individual rights, resulted
in the enlargement of the body constituting the joint Hindu family3. A joint Hindu family consists

1
While in the State of Kerala the concept of joint family has been abolished, four States to begin with by introducing
unmarried daughters as coparceners. The Hindu Succession (Amendment) Act, 2005 has brought equality and
presently a daughter and a son are members of their father's joint family in an identical manner.
2
The expression "Hindu Joint Family" is synonymous with the expression "Hindu Undivided Family" used in the
Income Tax Act, 1961
3
Acharya Shuklendra, Hindu Law 601 (2005)

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of all male members lineally descended from a common male ancestor and includes their wives
unmarried daughters and adopted children. A daughter on marriage ceases to be a member of her
father's family and becomes a member of husband's family. The Smritis and Commentaries make
a mention of the words kutumba or avibhakta kutumba for joint or undivided family4. A joint or
undivided family is the normal condition of Hindus which is ordinarily joint in food, worship and
estate (Creature of Law). In Surjit Lal v. Common. I.T.5, the Supreme Court elaborates that outside
the limits of coparcenary, there is a fringe of person males and females, who constitute an
undivided family. There is no limit to the number of persons who compose it, nor to their
remoteness from their common ancestor and to their relationship lineally or laterally with one-
another. To be a member of the family one may be added by birth, marriage or adoption. A female
who comes in the family by marriage becomes sapinda of her husband. The joint family is thus a
larger body consisting of a group of persons who are united by the knot of sapindaship arising by
birth, marriage or adoption.

CONCEPT OF COMPOSITE FAMILY

The concept of a joint family also differs from that of a composite family. The latter has come to
be recognized in law on the basis of custom prevailing in certain parts of South India, especially
in Andhra Pradesh. A joint family is a creation of law whereas a composite family is constituted
by an agreement, express or implied, between a number of families for the purpose of living and
working together. These families are not mentioned by the Smritikaras. The resources of all the
families are pooled together, their gains are thrown into the joint stock, the common risks are
shouldered together, and the resources of the units are exploited for the entire composite family
without discrimination6. The joint family is purely a creature of law. It cannot be created by the
act of parties7. Where the female heirs of a male inherit his self-acquired property in their
individual capacity, they cannot constitute a joint Hindu family by entering into an agreement and
throwing their shares into the "Joint family Property."8

4
Yajanvalka, II, 45, 175.
5
1976 HLR (SC) 146.
6
Ramesh Nagpal, Modern Hindu Law 641 (2008).
7
R. Ramagopal Reddy v. Padmini Chandrasekaran (1990) 2 HLR (Mad) (DB) 485.
8
CIT v. Sandhya Rani Dutta (2001) 3 SCC 420.

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AIMS AND OBJECTIVES

1. The researcher tends to analyze the laws related to right of coparcener.

2. The researcher tends to find how can coparcener relinquish his right in interest in property.

SOURCES OF DATA

The researcher will be relying on both primary and secondary sources to complete the project.

• Primary Source: Books

• Secondary sources: Material available on the internet.

HYPOTHESIS

The researcher tends to presume that amendments are required in the existing laws because of
certain lacunas.

LIMITATION OF THE STUDY

The researcher is facing certain limitations, which has caused research within a certain ambit:

1. Time limitation

2. Monetary limitation.

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 2. CONCEPT OF A HINDU COPARCENARY

The primary purpose of understanding the concept of Mitakshara coparcenary was spiritual in
nature. A coparcener in relation to the father is a person who can offer a funeral cake to him. This
capability to offer spiritual salvation by the performance of funeral rites was with the son, son of
a son (grandson), and son of a son of a son (great-grand son) and as a consequence of it they were
conferred a right by birth in the property of the father. This religious aspect that associated it
primarily with relationship and spiritual benefits and not merely from the property perspective was
totally sidelined later by the legal aspect. The revenue authority's view was that coparcenary purely
from the property angle. Presently it is understood to ascertain the rights and obligations of the
members in the joint family property that is also called as ancestral property or the coparcenary
property9. A Hindu coparcenary is a much narrower body than the Hindu joint family. It includes
only those persons who acquire by birth an interest in the joint or coparcenary property and these
are the sons, grandsons and great grandsons of the holder of the joint property for the time being,
that is to say, the three generations next to the holder in unbroken male descent. The essence of a
coparcenary is unity of ownership with the necessary appendage of unity of possession. No
coparcenary can commence without a common male ancestor, though after his death it may consist
of collaterals such as brothers, uncles, cousins, nephews etc. A coparcenary is purely a creature of
law and cannot be created by contract. But the adopted person may be introduced as a member of
the coparcenary10 and after the death of common ancestor coparcenary of brother can be created.11
Ordinarily, a coparcenary will end with the death of the surviving coparcener, very interestingly
but if surviving coparcener dies leaving a widow having authority to adopt a son to him,
coparcenary will be continued. The reason is that a family cannot be ended if there is a possibility
of adding any male member to it. It should be very well remembered that though every coparcenary
must have a common ancestor to start with, it is not to be supposed that every coparcenary is

9
The sages declared the partition of the heritable property to be co-ordinate with the gifts of funeral cake. Since it was
said that the son can offer a funeral cake to the father and the grandfather, there was a conflict of opinion on whether
the class of coparcener would include only the sons and grandsons or would also include a great grandson. However,
Vyavahara Mayukha says that the term grandfather refers to a class as including the great-grandfather also and
therefore a man's sons, sons of sons and sons of sons of sons can offer spiritual salvation to him and would be his
coparceners.
10
Section 12 of the Hindu Adoptions and Maintenance Act, 1956.
11
A.N. Sen, Hindu Law 147 (2008)

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limited to four degrees from the common ancestor12. After the death of common ancestor or any
other last holder of the property, the fifth in descent from him would become a member of the
coparcenary, provided his all three immediate male ancestor i.e., the father, grandfather and the
great grandfather had not predeceased the last holder, for that is another important rule of Hindu
law that whenever a break of more than three degrees occurs between any holder of property and
the person who claims to enter the coparcenary after his death, the line ceases in that direction.

INCIDENTS OF COPARCENERSHIP
The main incidents of coparcener ship under the Mitakshara law 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
with the rest.
4. As a result of such co-ownership, the possession and enjoyment of the properties is
common.
5. No alienation of the property is possible without the concurrence of the coparceners unless
it is for necessity.
6. The interest of a deceased member lapses on his death to the survivors.
7. A coparcenary under the Mitakshara School is a creature of law and cannot arise by act of
parties except in so far that, on adoption, the adopted son becomes a coparcener with the
adoptive father as regards the ancestral properties of the latter.13

12
The original holder of the coparcenary property.
13
State Bank of India v. Ghamandi Ram, AIR 1969 SC 1330

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 3. RIGHTS OF COPARCENERS

Coparceners have the following rights with respect to the coparcenary property:

(i) Co-existing with the ability of the coparceners to perform funeral rites of the father enabling
him to attain spiritual salvation is the right by birth in the coparcenary property. The moment a
coparcener is born, he acquires an interest in the coparcenary property.14

(ii) The coparceners together possess the title to the coparcenary property. This property is not
owned by joint family or coparcenary as a unity. The ownership vests with the members of the
coparcenary. All coparceners together have a joint or common title or ownership of this property
and till they work out their shares, the extent of their ownership is not discernible.

(iii) Each coparcener has a right to possses and enjoys the coparcenary property by virtue of being
a coparcener and therefore, a co-owner of it. The right is of common enjoyment which means that
till a partition by metes and bounds takes place, no coparcener can claim an enjoyment exclusively
of a specific portion of the property. He can neither predict his exact share nor his specific portion
in the property15. A temporary absence of a coparcener does not mean an ouster from possession.16

(iv) Coparceners have a right by birth in the coparcenary property and the moment a son is born
he acquires on interest in the property. The right of the surviving coparceners to enlarge their
shares in the property is due to the application of the doctrine of survivorship.

(v) In a joint family, Karta has the authority to manage the affairs and also the property in the best
interests of the family. He is not accountable to the other members except in three situations:

• He is conducting the family business and the nature of business is such as necessitates
maintenance of proper accounting;
• There are charges of fraud or misappropriation of income or conversion;
• When a coparcener asks for a partition.

14
Mandly Prasad v. Ramcharan Lal (1947) ILR Nag 848.
15
State Bank of India v. Ghamandi Ram, AIR 1969 SC 1330.
16
Gopala Krishnan v. Meganathan (1972) 2 MLJ 481.

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In such cases, the coparcener can ask the Karta to render the account, but the Karta cannot be asked
to give the past accounts and he would be within his rights to render only the then existing
accounts.

(vi) A coparcener can hold an interest in the coparcenary property and possess separate property
of his own at the same time. Law does not restrict him from acquiring property in his individual
capacity and for this the consent of the other coparceners is not an essential requirement.

(vii) The interest of a coparcener in the coparcenary property is a fluctuating interest that changes
with the deaths and births of other coparceners in the family. A coparcener is competent to convert
this fluctuating and probable share to a fixed and specific share in the property by demanding a
partition. Except in Bombay17 and Punjab18, where a son cannot demand a partition from the father,
if he is joint with his own father without his consent, every coparcener has a right to demand a
partition.19

(viii) A coparcener cannot ordinarily transfer his undivided share except under some specific
situations, but a coparcener is empowered to renounce his undivided share in the joint family
property, in favor of all the remaining coparceners. Two things are important here; firstly,
renunciation should be of the entire undivided interest of the coparcener,20 either he renounces his
total interest or none at all; secondly such renunciation must be in favor of all the remaining
coparceners.21

(ix) A coparcener, who commits an act that is improper, illegal or prejudicial to the interest of the
joint family members or the coparcenary property including common enjoyment and possession,
can be restrained by an injunction from doing such an act.

17
Ahaji v. Ramchandra (1812) 16 Bom 29.
18
Gahru Ram v. Hardevi, AIR 1926 Lah 85.
19
Nikanta Krishnarao Apte v. Ramchandra, AIR 1991 Bom 10.
20
Alluri Ventatapathi v. Dantaluri Venkata Narasimha, AIR 1936 PC 264.
21
Choudhuri Raghubans Narain Singh v. State of U.P., AIR 1972 SC 2096.

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(x) As a general rule of Mitakshara coparcener does not have a right to dispose of his undivided
share in the coparcenary property by alienation22 unless all the coparceners give a valid consent to
it.23

(xi) The power of alienation of joint family property is with the Karta. Where Karta sells the joint
family property for an unauthorized purpose, the coparceners have three remedies in the
alternative;

• A coparcener can seek partition and separate from the family.

• Where the act of Karta amounts to a waste or an ouster, 24 he can be restrained by an
injunction obtained from the Court from committing such waste.
• Where an alienation of the property is already affected, it can be challenged by the
coparceners as invalid and not binding on their shares. However, where the property is sold
by the father to pay his antecedent debts and the sons claim that such alienation was not
binding on them as the debts were contracted by the father for an illegal or immoral
purpose, not only do they have to prove the immoral or illegal character of the debt but
also that the creditor had notice of it.25

22
Syed Karani v. Jorawar Singh, AIR 1922 PC 353.
23
Where all the coparceners agree, the complete or part of the joint family property can be sold.
24
Kailash Chand v. Bajrang Lal, 1997 (1) HLR (Raj) 342
25
Poonam Pardhan Saxena, Family Law Lectures : Family Law II 98 (2011).

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 4.COPARCENER’S POWER TO RENUNCIATION OR
RELINQUISH

A coparcener has power to renounce his share in the joint family property. A gift by a coparcener
of his entire undivided interest in favour of other coparcener or coparceners will be valid whether
it is regarded as one made with the consent of one or others or as a renunciation in favour of all.
Renunciation with a condition to pay maintenance to him is valid. But a gift or renunciation of his
share by one coparcener in favour of his one of several coparceners is not valid.

In Alluri Venkatapathi Raju vs. Venkatnarasimha Raju, Privy Council held that, a
coparcener’s renunciation of his interest merely extinguishes his interest in the joint estate and its
only effect is to reduce the number of persons to whom shares will be allotted if and when a
division of the estate takes place.

In N.R. Raghavachariar's Hindu Law - Principles and Precedents' - 8th Edition, (1987), at page
237, it is said thus:

A coparcener can renounce his interest in the joint family estate. The renunciation does not result
in a general partition of the family. Such a renunciation merely extinguishes his interest in that
estate, but does not affect the status of the remaining members quad the family property, and they
continue to be coparceners as before, the only effect of the renunciation being to reduce the number
of persons to whom shares would be allotted if, and when, a division of the estate takes place. A
coparcener can renounce his interest only in favour of all the coparceners and when he renounces
in favour of only one of them, the renunciation, endures for the benefit of even the others, his
renunciation which endures for the benefit of all the other coparceners may take the form of a gift
of the entire interest of a coparcener in favour of another coparcener.

In Mulla 's 'Hindu Law' - 15th Edition (1982) at page 357, it is said thus:

Renunciation or relinquishment of his share - A coparcener may renounce his interest in the
coparcenary property in favour of the other coparceners as a body but not in favour of one or more
of them. If he renounces in favour of one or more of them the renunciation endures for the benefit
of all other coparceners and not for the sole benefit of the coparcener or coparceners in whose

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favour the renunciation is made. Such renunciation is not invalid even if the renouncing coparcener
makes it a condition that he would be paid something towards maintenance. The renunciation or
relinquishment must, of course, be genuine. If fictitious and not acted upon it would be inoperative
as between the parties and partition can be claimed.

Hence The relinquishment by one coparcener of his interest in the family estate in favour of the
members of the coparcenary does not amount to an alienation; it merely amounts to an extinction
of his interest in favour of the others. The gift of his interest to one of several other coparceners
would not mean the extinction of that interest. It would mean an alienation of it. It is well-settled
law that there cannot be such a gift to a stranger and it is now clear that there cannot be a gift to a
fellow coparcener if the family is to remain undivided.

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 5. RELATED CASES

26
CHELLA SUBBANNA V. CHELLA BALASUBBAREDDI It was held that The relinquishment by one
coparcener of his interest in the family estate in favour of the members of the coparcenary does
not amount to an alienation; it merely amounts to an extinction of his interest in favour of the
others. The gift of his interest to one of several other coparceners would not mean the extinction
of that interest. It would mean an alienation of it. It is well-settled law that there cannot be such a
gift to a stranger and it is now clear that there cannot be a gift to a fellow coparcener if the family
is to remain undivided.
GURUSWAMI GOUNDAN AND ORS. V. MARAPPA GOUNDAN AND ORS27
the question was, whether a father can relinquish his right with a condition that the son should
maintain him. In paragraph 8 of the judgment, it was held thus: The separation of one who is able
to support himself and is not desirous of participation (may be completed) by giving some trifle.
All these authorities envisage only the renunciation by a son and not by the father or grandfather
who happens to be the head of the family as in the present case. No specific text or authority
showing that the father could renounce his rights in joint family property by taking a trifling or
something for his means of livelihood has been cited. But it was argued that it is open to the father
to make a division of the property among his sons, either by taking a share himself or by giving
up his rights. If he decides to renounce his share on condition of being paid maintenance very year,
it must be understood that he was effecting a partition among his descendants and cutting himself
off. According to the texts cited above, if a son can renounce his rights, it stands to reason that the
father, who can compulsorily effect a partition under the Hindu Law can renounce his rights after
taking something for maintenance. This kind of renunciation can be interpreted in various ways.
It may be a gift by the father of his share to the sons; it may amount to an alienation of his share;
or an effacement of his rights.
But since the Full Bench decision in SUBBANNA V. BALASUBBA REDDI 28, has held that an
alienation or a gift of his share is not possible, the only way in which his action can be properly

26
MANU/TN/0035/1944 : AIR 1945 Mad 142
27
MANU/TN/0065/1950 : AIR 1950 Mad 140
28
I.L.R. 1945 Mad. 610 : A.I.R. 1945 Mad. 142 (F.B.)
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construed is either an effacement of his own rights by not taking anything or partitioning the
property among the sons after taking maintenance. Whether his right to maintenance can be
construed as a charge on the family property, does not arise for consideration here. If the sons
regularly give him the maintenance the question of a charge does not arise, and therefore whether
a charge exists or not need not be considered. It seems to me therefore that the renunciation of his
rights in property by defendant 6, after agreeing to receive maintenance of four putties of paddy
every year for his livelihood is valid and therefore defendant 6 has no longer any share in the
property which can be settled upon defendants 3 to 5. The partition ought, to be in equal shares
between the plaintiff on the one side and defendants 1 to 5 on the other.
Both the above decision was considered in decision of DURAI ALIAS KARUNANIDHI V.
DEVARAJALU NAIDU AND TEN ORS29 It was held that A coparcener can make over his
interest in the joint family properties, but that has to be in favour of the entire coparcenary as such.
In such an event, it would be in the nature of a renunciation, so that the person who renounced
would be in the same position as one who went out of the family and the other person's would
continue in the coparcenary as reduced to that extent.
ALLURI VENKATAPATHI RAJU VS. VENKATNARASIMHA RAJU30 Privy Council held
that, a coparcener’s renunciation of his interest merely extinguishes his interest in the joint estate
and its only effect is to reduce the number of persons to whom shares will be allotted if and when
a division of the estate takes place.

29
(1990) 1 M.L.J. 507
30
(1936) 38 BOMLR 1238

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 6. CONCLUSION

The relinquishment by one coparcener of his interest in the family estate in favour of the members
of the coparcenary does not amount to an alienation; it merely amounts to an extinction of his
interest in favour of the others. The gift of his interest to one of several other coparceners would
not mean the extinction of that interest. It would mean an alienation of it. It is well-settled law that
there cannot be such a gift to a stranger and it is now clear that there cannot be a gift to a fellow
coparcener if the family is to remain undivided. There is another Privy Council judgment which
supports the proposition that there cannot be a renunciation by one member of a joint family in
favour of one of several other members of the family while the family remains joint. In Vasantrao
v. Anandrao.31 one Madhawaro executed a release of his interest in the family property in favour
of his father. The Bombay High Court held that the release must be treated, as being, not for the
benefit of the father alone, but of the coparcenary and the shares were to be determined as though
Madhawrao had died. This case went to the Privy Council as Anandrao v. Vasantrao 9 B.L.R.
595their Lordships held that the governing principles had been rightly applied by the High Court
and dismissed the appeal. At p. 497, 10th Edn. of Mayne the learned editor expresses the opinion
that dicta in Pedayya v. Ramalingam I.L.R. 11 Mad. 406 and Thangavelu Pillai v. Doraiswami
Pillai 27 M.L.J. 272 cannot be considered good law especially after the decision of the Privy
Council in Venkatapathi Raju v. Venkatanarasimha Raju32. 1. It follows from what we have said
that we are in full agreement with this opinion and that additional support for it is to be found in
the judgment of their Lordships in Anandrao v. Vasantrao . The answer which we give to the
question referred is this: A member of a joint Hindu family governed by the Mitakshara law cannot
give his interest in the family estate to one of several coparceners if they remain joint in estate. In
such circumstances he can relinquish his interest but the relinquishment operates for the benefit of
all the other members.

31
6 B.L.R. 925
32
MANU/PR/0126/1936(1936) 71 M.L.J. 558 : I.L.R. 69 IndAp 307 :I.L.R. 1937 Mad.
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 BIBLIOGRAPHY

❖ Desai, SA 2007, ‘Mulla Hindu Law (2 Vols)’,20th edition, Lexis Nexis,

New Delhi.
❖ Family law by paras diwan
❖ https://www.legalcrystal.com
❖ http://www.legalserviceindia.com
❖ www.indiankanoon.org
❖ www.manupatrafast.com/
❖ www.scconline.com/
❖ FAMILY LAW (ALLAHABAD LAW GUIDE) by SHARVARI VAIDYA

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