The word Hindu
is foreign origin
as it was used to identify
individuals living east of the Hindu River, also referred to as the Indus River.
Regardless of caste and creed, the word Hindu was applicable to all the
inhabitants of India. In the course of time, religion was identified with the
Hindu Undivided Family is a very unique sort of business organization under
Hindu law. In India, these family businesses operate on a large scale. That's
why a uniform law has become important for the nation to come up with. The joint
family business aspect covers such concerns as Karta, Coparcenary, Coparcenary
Property, etc. There are different schools under Hindu law, these schools are
concerned with HUF Business laws according to their own framework.
Joint family is a fundamental feature of Hindu law in which their shared
ancestor and his male lineal descendants, along with other members such as
spouses, unmarried daughters who remain together under one roof share all in
shared, are the definition of joint family.
Joint Hindu Family is an unavoidable and fundamental principle of Hindu family
law regulated by the Hindu Succession Act of 1956 at present days. It is a
natural condition of Hindu society. It is a never-ending phase for a Hindu, if
it is brought to an end by the means of a partition in one generation; it
immediately comes back into existence in the next generation. The assumption
that each Hindu family is a joint Hindu family is brought together by the law.
Coparcenary owes its origin to Daya's concept of ancient History. The
Vijnaneshwara says that Daya, the origin of the Coparcenary system is just the
property that becomes another person's property, purely because of the owner's
relationship with others by Family. The particular coparcenary principle is the
result of ancient Hindu jurisprudence, which later became a prominent part of
A Coparcenary system is a narrower body of persons within a joint family under
Hindu Law. Coparcenary is a term that is established in matters concerned with
Hindu Succession Law. It refers to a person who by birth has the power to claim
a legal right in his ancestral properties. The HUF is a family of individuals,
according to Hindu law, who are the lineal descendants of a common ancestor. The
oldest member and three generations of a family will be included in this group
as Karta, and all these members are known as coparceners.
Coparcenary has its essence under the concept of Unity of ownership with the
requisite appendage of unity of possession (common right to possess and enjoy
the property). Without a common male ancestor, no coparcenary may start. It is a
strictly lawful feature and cannot be established by a contract. If the common
ancestor dies, it is possible to establish a coparcenary system of the male
descendants in the family.
The meaning of a co-parcenary under Mitakshara law is clarified in the case of
Moro Vishvanath v. Ganesh Vithal
. The Supreme Court summarised the
situation and noted that all the coparcenaries in a quasi-corporate capacity
kept the coparcenary property in collective possession of the members of the
Formation and Differentiation of coparcenary under Dayabhaga and Mitakshara:
For all Hindus, the codified Hindu law provides uniform law where there is no
space for schools to exist and these are applicable only in regard to the
uncodified areas of Hindu Law. With the beginning of the age of commentaries and
digests, the Schools of Hindu Law evolved. As a result, schools with opposing
doctrines emerged, and the related laws were obtained in one and other parts of
The joint Family system is divided into two different schools i.e. Mitakshara
and Dayabhaga. These schools aren't codified and but have an impact on
legislatures. The Mitakshara concept of the Joint Family is practiced in most
parts of India, but the Dayabhaga concept of the Joint Family is followed by
people in West Bengal, Assam, and elsewhere. In the two schools, i.e. Dayabhaga
and Mitakshara, it's the subject matter of joint family property is the region
that separates each of them from another. These schools have major impacts on
the present development. Mitakshara and Dayabhaga system deals with various laws
under the Hindu law, each in their own way.
Mitakshara School Coparcener system has an interest in the property of Joint
Hindu family by birth, but before partition takes place, coparcener enjoys the
status as a coparcener by birth, this indicates that there is a nature of
uncertain and fluctuating interest that increases with death and decreases in
the family with birth. It is founded on the 'ownership theory'. The presence of
a community of interest and unity of ownership is also present in Mitakshara
School of law
The School of Mitakshara bases its inheritance law on the principle of
propinquity. It means the one who is closest in the relationship with respect to
the blood succeeds. When applied, the theory would mean that, for example, sons
would succeed in the property because they are similarly close to their deceased
parent, where it excludes women from inheritance.
In the case of Thammavenkata Subbamma v Thamma Rattamma
, the Supreme Court
held that Mitakshara Coparcenary is an essential characteristic of unity of
ownership and community of interest. The undivided share exists indefinitely,
the coparcener has some definite share in the coparcenary property, which
increases with the death and decreases with the birth of any coparcener.
The Dayabhaga Joint Family is a reflection of family members' ability to live
together. In food, worship, and land, the family is communal. The Dayabhaga
School is based on the principle of religious effectiveness or spiritual gain
and its rule of succession. It means that the person who gives the deceased more
religious advantage is entitled to inheritance rather than the others who give
the deceased less advantage religiously.
The Dayabhaga School of Law does not distinguish between Joint family property
and separate property, because Property is based on the principle of
inheritance. The shares of Coparcenary property are clear under Dayabhaga School
and do not fluctuate with the death and birth of members. The property is
returned to heirs by way of inheritance upon the death of a coparcener.
The foundation of a coparcenary is first laid on the birth of a son, according
to the Mitakshara School of law. Therefore, if a Hindu governed by the
Mitakshara law has a son born to him, the father and the son become coparceners
at once. The foundation of a coparcenary is laid on the death of the father,
according to the Dayabhaga School of law. There is no coparcenary as long as the
father is alive. It is only on his death that a coparcenary is first created
leaving two or more male members.
Concept of Inheritance Succession under Dayabhaga and Mitakshara:
In India, inheritance and property law finds its legislative origins in the
Hindu Succession Act, 1956. As given under it, the pattern of succession is for
a testate inheritance, i.e. when a death happens without any will, the property
must be distributed according to the law's guidelines. In India, this pattern is
not standard and varies from one religion to another and from one school to
another, in accordance with the customs and guidelines laid down by the
respective Family law system.
Under Hindu law, the right of inheritance was a right that vested immediately
upon the death of the owner of the property on the person who at that time was
the closest heir. Under no circumstances should it remain in abeyance in
anticipation of the birth of a chosen successor, not born at the time of the
death of the creator. Where the property of a Hindu Joint family was upon the
responsibility of a person who, at the time of his death, was the nearest heir,
it could not be divested.
Under inheritance, the Dayabhaga School and Mitakshara School have their
framework. The two systems are based on the text of Manu that the next
inheritance belongs to the nearest Sapinda. The contradictions between the two
derive from the fact that although under the Dayabhaga School the doctrine of
religious effectiveness is the guiding principle, under the Mitakshara there is
such a definite guiding principle.
A Division may be made by any coparcener making a definite, unambiguous
statement of purpose to detach him from the family. If this is achieved, the
division of the property's status will amount to whatever mode it is used. As
per the Mitakshara Law, the coparcenary property that is subject to the
partition is the modification of the diverse interests in relation to the whole
by distributing them into separate portions of the aggregate. Under the
Dayabhaga law, it means property division according to the coparcener's
The Sapinda relationship doctrine is insisted on by the Mitakshara school of law
in offering religious oblations, the class of blood should be preferred to the
particular class, and that is the governing element whereby the right to inherit
occurs under the Mitakshara rule. The inheritance under Mitakshara is based on
the Doctrine of Survivorship.
The concept of religious effectiveness or spiritual gain (Concept of Sapindas)
is the foundation of Daybhaga School. In contrast to those who confer less
spiritual advantage based on the Doctrine of Oblations, those who confer more
spiritual advantage are entitled to inherit the property. The females can also
inherit the property in the family under the Daybhaga school of law. Widow has
the right to succeed in her husband's share in the case of the coparcener dying
issueless, and to impose a partition on her own account. Hence the right to
inherit derives from spiritual effectiveness, i.e., the power to confer
spiritual gain on the names of paternal and maternal ancestors under the
Dayabhaga School of law.
Under Mitakshara, women should not be coparceners. A wife has the right to
maintain her husband's property. Yet she's no coparcener. Under the Hindu
Women's Right to Property Act, 1937, a widow also succeeds in the share of
her deceased husband in the joint family but cannot be a coparcener.
Partition of an HJF in Dayabhaga and Mitakshara:
Partitioning means separating the joint family property among the members who
are eligible for the share in the partition. The joint family ceases to be joint
upon division, and nuclear families or multiple joint families come into being.
Joint family members can request partitioning and are entitled to share. A
reunion or division can only be made between the family parties who can assert
and have rights over their Property.
The Coparcenary property should be liable to the partition. Separate property is
not at all responsible for the partition. It totally belongs to the owner of
that spot. In the case of Poonam Mishra vs. Rajkumari Mishra
, it was held
that the property obtained subsequently has to be considered as self-acquired
property however obtained with joint funds and must be exempt from partition.
According to Dayabhaga School, by birth, sons do not gain any interest in the
ancestral property and they cannot request from the father a partition of such
property. Partition, under the law of Dayabhaga, means the division of Joint
property of the family in accordance with the particular share that is already
in joint possession and common by the members of the family. This implies
splitting up joint ownership, i.e. dividing or splitting the coparcener share
that they already have a common possession according to metes and bounds.
Under the Dayabhaga School, the coparcenary nature is the unity of possession,
while it is the unity of ownership in Mitakshara School of law.
Under the Dayabhaga, a partition of the coparcenary property can be imposed by
any adult coparcener, whether male or female, while under the Mitakshara, as it
existed before the 2005 amendment of the Hindu Succession Act, a female could
not at all be a coparcener and was therefore not entitled to partition. A woman
may be a coparcener today.
A son, a grandson, and a great-grandson may demand partition against his three
immediate ancestors under the Mitakshara School of law. 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.
Partition is the adjustment of the different interests with regard to the whole,
according to the Mitakshara School of Law, by distributing them to the
respective members in separate parts. It has been described as the
crystallization of a coparcenary's fluctuating interest into a specific share of
the joint family property by stopping the fluctuation and later freezing of the
partition's property value. In the case of Lord Westbury in Approvier v. Ram
, it was held that" no individual member of the joint family,
while the property remaining undivided, can predicate that he or any particular
member, has a certain definite share of the joint and undivided property.
In the case of Moro Vishvanath v. Ganesh Vithal
, it was said that the meaning
of a co-parcenary under Mitakshara law is known as a unity of ownership. The
coparcenary property's possession is in the whole family of coparceners. No
individual member of that family may predict a definite share of the joint and
undivided property of the family, according to the true notion of an undivided
family. His interest is a fluctuating interest, capable of being expanded by
family deaths and reduced by family births.
He becomes entitled to a definite
share only on the partition. Undivided coparcenary interest is the most suitable
concept for defining a coparcener's interest in coparcenary land. If Under
Mitakshara School of law any such coparcener dies Then upon his death, his
interest immediately becomes part of the share of property that the coparceners
who survive carry as likewise fluctuates positively towards the existing
In respect to the mother in initiating the Partition, under Dayabhaga and
Mitakshara, a mother does not impose a partition herself, as under the
Mitakshara, so also under the Dayabhaga; but when a partition takes place
between her sons, she is entitled to a share equal to that of a son after
calculation of various other elements like the property received as a benefit of
a wife or daughter in law in the presence of the head of the Joint Hindu Family.
Partition Under these two schools of law follows an exception of Reunion. The
reunion takes the split members of the family to their former status, which is a
joint Hindu family. The only means by which the original joint status can be
re-established is after the general partition reunion. Only among those
participants who were parties to the original partition will the meeting take
place. Under Mitakshara's rule, only between father and son, between brothers,
reunions take place.
Partition is a concept under Hindu law and is basically guided by two Schools of
law, namely. Dayabhaga and Mitakshara. The partition between a Hindu family
means severance between the individuals from the family of the status of
jointers and ownership of property. The partition may take place in various
ways, such as by agreement, arbitration, notice, etc.
The partition can occur by
stripes or by branch under Mitakshara School, and under Dayabhaga School,
partition occurs just after the Karta's demise, the Dayabhaga School follows no
idea like coparcenary. Partition is an instrument that plays out the ability to
put to its end to a Hindu joint family and its Joint property.
There are two Hindu law schools, i.e., Dayabhaga and Mitakshara. In both
classes, the Coparcenary definition is also distinct. Coparcenary in Mitakshara
School consists of four generations of male descendants, but the daughter still
enjoys the status as a coparcener after the post Amendment Act, 2005 in the
landmark judgment of Vineeta Sharma v. Rakesh Sharma.
The notion of coparcenary has come a long way and has undergone many changes.
The main goal of the Amendment Act 2005 is to eradicate gender discrimination,
and this amendment has been made to preserve the role of women in our society.
Whereas there is no presence of four generations in Dayabhaga School of law and
the notion of interest in coparcenary property on the basis of the last holder's
The scheme of Mitakshara is Traditional. In times of difficulties, it provides
good protection as a member may rely on the joint family of his own. A member,
however, can often become a parasite in Mitakshara School of law. Dayabhaga is a
more liberal scheme. Of the two, with the growth of individualism, individual
enterprise, and economic compulsions, the Dayabhaga school of law is more likely
to last in modern times.
- Formation and Incident under the Coparcenary Property, Tanya Gupta,
- Moro Vishwanath v. Ganesh Vithal, 10 Bom HCR 444
- 1987 AIR 1775, 1987 SCR (3) 236
- Doctrine of survivorship: the property after the death of the common
ancestor devolves by the survivor. Coparcenary in India: It's Past, Present,
and Future, By Jasleen Kaur Dua, academike.
- The Hindu Women's Rights to Property Act, 1937
- AIR 1995 Ori 284, 1995 I OLR 606
- A partition is a means by which the property is divided into separate
demarcated and clearly defined extensions by multiple joint owners of the
property. Such partitions are known as "by metes and bounds" partitions.
- Lord Westbury in Approvier v. Ram Subba Aiyer, 11 M.I.A. 75
- Supra 2
- Vineeta Sharma v. Rakesh Sharma, 11 August 2020