Tuesday, February 27, 2024

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HINDU LAWMODEL ANSWER

COPARCENARY

Explain the concept of Mitakshara Coparcenary and its basic characteristics and discuss also the difference between Joint Hindu Family and Mitakshara Coparcenary.

Coparcenary is a part of a Joint Hindu Family which is governed by Mitakshara Law School. Unlike the joint Hindu family which includes all the members upto โ€œnโ€ number of generations, the coparcenary includes members upto fourth degree of relationship. Before the amendment of 2005, the coparcenary included male members only i.e. father, son, sonโ€™s son and sonโ€™s sonโ€™s son. But after the amendment of 2005, it includes female members also. The main purpose behind this amendment was not to disturb the basic concept of coparcenary and joint Hindu family but to bring the equality among men and women and also to give more proprietary rights to women.

According to Hindu law, Coparcenary is a quasi- corporate body which is a creation of law. Coparcenary cannot be created by a contract rather every coparcener has a right into property from his or her birth. The share of every coparcener fluctuates due to death or birth of another coparcener and it happens until the share has been fixed. According to Mitakshara school, the share of every coparcener devolves upon him either by survivorship or by succession but after the amendment of 2005 in Hindu Succession Act, 1956, the concept of survivorship has been abolished completely.

According to Mitakshara Law School, coparceners are mutual agents of each other but it is different from partnership firm because partnership is created by an agreement between the parties but the coparcenary cannot be created by an agreement. Moreover, in a partnership firm, every partner of the firm manages the affairs of the firm but in it there is a Karta who manages the affairs of Joint Hindu Family.

Under the Mitakshara School, only male could took the share from the property and position of female was very worst. That is why, the law regarding succession of property has undergone various changes only to improve the condition of women and this could be seen from various situations. Before 1937, if any coparcener died interstate than his property devolved upon remaining coparceners and not upon female heirs of deceased coparcener but female heirs had only right of maintenance. That was why, to give more proprietary right to female the law was enacted and concept of life interest was created.

According to this law in case of death of coparcener, his property was not devolved upon other coparceners immediately by survivorship but life interest upon property was created in favour of female heirs of deceased coparcener. They did not have the full ownership of property but they could enjoy the possession of property.
But after enactment of Hindu Succession Act, 1956, the legislature restricted the concept of survivorship and converted the life interest in full ownership under section- 14 of Hindu Succession Act, 1956.

According to Section 6 of Hindu Succession Act, 1956, if any coparcener dies leaving behind him any female class 1 heir then his interest will not devolve upon other coparceners but it will devolve upon female heirs and they will be full owner of the property. But the legislature amended section 6 of Hindu Succession Act, 1956 in the year 2005 just to bring equality among male and female and to give more proprietary rights to female by declaring them coparceners. According to this amendment female became coparcener and this amendment fully abolished the concept of survivorship.

Coparcener can claim partition with respect to his interest in joint property at any time. Upon partition the coparcener will not get any new title rather a partition is only a declaration regarding the ownership which he has by his birth. Coparcenary as a concept is based upon unity of ownership and unity of possession. That means every coparcener is joint owner of the property and also no coparcener can claim the exclusive right of possession of that property. Rather the possession of one coparcener will be deemed to be the possession of remaining coparceners and that is why the concept of adverse title will not be applicable in coparcenary. Coparcener before partition will be called joint tenants where their shares are not fixed but after partition they will be called tenants in common where their shares are fixed.

The Mitakshara coparcenary is different from joint Hindu family in various aspects. The coparcenary is a part of joint Hindu family and is a much narrower body then joint family because coparcenary includes male and female members up to 4th generation whereas the joint Hindu family includes male and female members up to โ€œnโ€ number of generations. Moreover after the establishment of joint Hindu family, the existence of joint property is not essential whereas in case of Mitakshara coparcenary existence of joint family property is essential.

In the leading case of C.I.T vs Laxminarayan (37 BOM LR 692), The Honโ€™ble Court held that โ€œa coparcenary is a unit within the institution of joint Hindu family and if there is no coparcenary, it does not follow that there is no joint Hindu family.โ€

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