Coparcener means a person belonging to the family and is legal heir of
ancestral property of that family. Coparcenary is a legal word applied in Hindu
succession law. It relates to someone who is born with the legal authority to
inherit ancestral property. It literally means "unity of title, possession, and
interest". It is exclusively a legal formation; it cannot be produced by the
action of parties, save through adoption. It derives straight from the theory
and practise of the HUF. Coparcenary is covered under the Hindu Succession Act
1956, however it has witnessed significant changes.
State of Maharashtra v/s Narayan Rao Sham Rao Deshmukh And Ors
, it was
argued in this instance that a coparcener has a narrow size than a Joint Hindu
Family. Just men who obtain a stake in joint or coparcenary property at birth
are eligible to become the coparceners. Coparceners are male member of the joint
hindu family as well as his sons, grandchildren, and great-grandsons. It has 1
shared ancestry and a maximum of 3 male descendant.
Sathyaprema Manjunatha Govda v/s The Controller of Estate Duty
, it was
declared by the court that although sons, grandsons, and great-grandsons are
coparceners, a great-great-grandsons can't be coparcener.
Coparcenary of Mitakshara School
Mitakshara school is built on the Yajnayalkya smriti, which Vijneshwara
interprets. Except for Assam and West Bengal, this school of thought was
accepted across India. Coparcenary refers to 4 generations of people inside a
Joint Hindu Family. It is made up of fathers and the following 3 male lineal
ascendant, namely the sons, son's son, and son's son's sons.
Mitakshara and Dayabhaga coparcenary Here, in this case, consider the chart
given belong to the Joint Hindu Family, then A will be Ist generation.
Similarly, B will be IInd generation, C will be IIIrd generation, D will be IVth
generation and E will be Vth generation. In case of share of property, everyone,
excluding E will get an equal share (1/4) in the property, since coparcenary are
till 4th generation only. In case A passes away, then B, C, D and E will acquire
a stake, because after A's death the first generation will be B and the 4th
generation will be E, so will become a coparcenary.
Coparcenary follows the rule of survivorship. This means the property will not
be transferred to the next generation if the last survivor is alive, and also
the 5th generation will not be added to the coparcenary if the last survivor is
alive. For example, if B or C or D dies then E will not get any share because,
even after their death A is the last survivor so E will not be added to the 4th
Mitakshara and Dayabhaga coparcenary Considering the following case, if all the
members of the family are alive then everyone will get an equal share, i.e., 1/6
from the ancestral property. If C or B or D or E or F or G will die, then rest
are coparcener and they will get an equal share in ancestral property. If
everyone except A dies, then property will pass through the rules of
Coparcenary is taken into account up to the 4th generation from the last
survivor or the inital owner. Only male members of the HUF can be coparceners;
females cannot. Daughters can now become coparceners like sons thanks to the
passage of the Hindu Succession Act in 2005.
A coparcener is born with an ownership in joint family property, but that
ownership is fluid and unexpected, and it can be raised or decreased by the
death of another coparcener in a joint Hindu family. In the case of joint family
property, an illegitimate son cannot be regarded a coparcenar. Coparcener's
share is determined only by the division of HUF.
Coparcenary of Dayabhaga School
Dayabhagha schools is built on Yajnayalkya smriti, which Jimutvahana interprets.
This school was accepted on West Bengal and Assam only. Coparcenary share which
is determined at Dayabhaga School is fixed. Both girls (unmarried or married)
and boys have equal share in the ancestral property under this school.
coparcenary In the following example, if A is still living, C and B are not
entitled to a claim the ancestral properties. If A passes away, only then B and
C will become coparceners. If in the situation, if both B and A passes away,
then whole property will pass to C. If everyone except A passes away, then
property will pass through the rules of Successions.
Mitakshara coparcenaryIn the following example, if B passes away before A, then
the ancestral properties will be split into 3 sections since B is married, thus
his children and spouse will receive his half.
In this school no coparcenary is made up of father, son, and other family
members. A coparcenary is formed for the 1st time after the father's passing,
when his daughter and son receive their father's properties. A child has no
title to his father 's properties through birth. It might be personal or
A father may use of his properties as he sees fit, or the assets will be
dissolved under the Hindu Succession Act. A coparcener can be a female as well.
Every coparceners have the authority to divide as well as the power to joint
ownership of the properties. A coparcener owns a definite portion of the
coparcenary properties. In the event of a coparcener's passing, his legal
successor inherits the property in accordance with the Hindu Succession Act.
Prakash and Ors v/s Phulavati and Ors
, in this case the court held
that, Only alive daughters of surviving coparceners have the claim to the
ancestral properties. A disagreement arose between a sister and brother about
the distribution of their ancestral properties. As a result, Phulavati made a
claim for her father's property. The court stated that there will be a
retroactive impact in which it will strip away all rights. As a result,
Phulavati cannot get the share in ancsetral propety because her father passed
away before December 20, 2004.
Under both, Mitakshara and Dayabhagha, coparcenary is defined in a little
different way. Like in Mitakshara, only male members had the right to ancestral
property but in Dayabhaga, both female and male members have the right to their
ancestral property. In Mitakshara, a person obtains the coparcenary by birth or
adoption, whereas in Dayabhaga, a person can only receive the coparcenary after
their father dies.
Mitakshara follows the rule of survivorship, i.e., if one coparcener dies, the
other coparcener inherits his share in the ancestral property, but in Dayabhaga,
if a coparcener dies, then his share in the ancestral property is given to his
legal heir. Even though there are some differences between coparcener under
Mitakshara and Dayabhaga, there are similarities also, like the property in
question should be an ancestral property and the coparcener should be a member
of the Joint Hindu Family.
- Law Corner, https://lawcorner.in/explain-in-detail-the-character-of-mitakshara-and-dayabhaga-coparcenary-difference-between-them/
(last visited, Aug. 26, 2022, 02:24).
- (1985) 2 SCC 321.
- (1997) 227 ITR 1 SC.
- (2016) 2 SCC 36.