India: Parcenary: Species And Genus Of A Mitakshara Hindu Family

Joint or undivided family is the normal feature of the Hindu society. 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 religious aspect that associated it primarily with relationship and spiritual benefit, and not merely from property perspective was totally diluted later by the legal aspect. Presently, coparcenary is understood to ascertain rights and obligations of the members in the ancestral property or coparcenary property.

Though a coparcenary and an HUF have been used interchangeably, a Hindu coparcenary is distinguishable from an HUF. Coparcenary is a narrower body within an HUF. It is a body of individuals which acquires interest by birth in joint family property. In other words, it can be said that an HUF is a species, whereas a Coparcenary is a genus. A Hindu coparcenary used to comprise of a common male ancestor and his lineal descendants in male line i.e. three generations next to the holder in unbroken descent. Coparcenary could not have commenced without a common male ancestor. However, after the Amendment to the Hindu Succession Act in 2005, daughter too is included as coparcener.

Whereas, outside the limits of coparcenary, males and females constitute membership of an undivided or joint family. In other words, all members of a coparcenary become members of a HUF, but all members of an HUF may not necessarily be coparceners. There is no limit as to the number of persons who can compose an HUF, nor to their remoteness from the common ancestor and to their relationship with one another. But they must necessarily be connected with the members of the family by relationship arising either out of birth, marriage or adoption. This relationship is referred to as tie of sapindaship. As such, a Hindu undivided family can also be created immediately after marriage. As said by Golapchandra Sarkar Sastri in his Hindu law (eight edition page 240), 'those that are called by nature to live together, continue to do so' and form a joint Hindu family.

The Full Bench of the Hon'ble Patna High Court in Commissioner of Income Tax v. Shankar Lal Budhia, [(1987) 165 (ITR) 380] observed that "...The joint Hindu family, with all its incidents, is thus a creature of law and cannot be created by act of parties, except to the extent to which a stranger may be affiliated to the family by adoption. But, the absence of an antecedent history of jointness between the appellant and his ancestors is no impediment to the appellant, his wife and unmarried daughter, forming a joint Hindu family. The appellant's wife became his sapinda on her marriage with him. The daughter too, on her birth, became a sapinda and until she leaves the family by marriage, the tie of sapindaship will bind her to the family of her birth..."

A Hindu undivided family may or may not own property. There can be an HUF or joint Hindu family which does not own any tangible property. This is because a Hindu gets a joint family status by birth and joint family property is only an adjunct of the family. Irrespective of whether a Coparcenary or an HUF owns property or not, its members may own property which exclusively belongs to them. Law as enumerated under Article 222 of Mulla Hindu Law is well settled. Mulla states that a Hindu, even if be joint, may possess separate property. Such property belongs exclusively to him. No other member of the coparcenary, not even his male issue, acquires any interest in it by birth, and on his death intestate, it passes by succession to his heirs, and not by survivorship to the surviving coparceners.

Members under Coparcenary and HUF: Coparceners are only those males who are within three generations next to the holder in unbroken descent and includes the common ancestor and the daughter of the common ancestor post 2005. The relevance of concept of coparcener is that only coparceners can ask for partition of a coparcenary. The other members of the Coparcenary apart from the coparceners, have no direct claim over coparcenary property, but can claim only through the coparceners. The coparcener must be a member of the family but a member of the family need not always be a coparcener. Whereas, an HUF, can consist of a very large number of members including wives as well as distant blood relatives. Under an HUF all the members can seek partition, except a wife of a surviving male member. Whereas, wife of a surviving mal member has only one remedy, i.e. to receive an amount in the form of maintenance. Section 18 of the Hindu Adoptions and Maintenance Act provides that a wife shall to be maintained by her husband during her lifetime. Section 19 of the same Act, speaks of the right of maintenance of a widowed daughter in law from her father in law.

Coparcenary with only female members: Prior to 2005, the senior male member of the family could become a Karta by virtue of the fact that he is the senior most male member. Additionally, in the presence of a senior male member, a junior male member could be the Karta, with the consent of all the coparceners.

In 2000, the 174th report of the 15th Law Commission recommended many amendments to correct the discrimination against women, and this was the foundation for the Hindu Succession (Amendment) Act, 2005. By virtue of the Hindu Succession (Amendment) Act, 2005, the daughters of a family, who are governed by Mitakshara Law, can now be recognized as coparceners in the Coparcenary property. The said Amendment further, by virtue of the amended Section 6(1)(a) and (b) gave them equal rights as the sons.

The Delhi High Court in the matter of Mrs. Sujata Sharma v Shri Manu Gupta [CS (OS) No. 2011/2006] held that while females have equal rights in coparcenary property, they also have the right to manage the same property as Karta. The Court observed that there are no restrictions regarding a female Karta in Section 6, of the Amendment Act. In fact, a woman may even be a de facto Karta in the family where she marries and a de jure Karta in her family of origin, provided that she is a widow and is the only major in the family she married into and is the eldest in her family of origin.

Thus, it can be deduced that after demise of the father in a Coparcenary, if the eldest born is a daughter, then she becomes the Karta of that same Coparcenary, whereas the mother and siblings (if any) become the members of the said Coparcenary.

Devolution under Coparcenary and HUF: The system of devolution of property under Coparcenary and HUF is by survivorship. The share of co-parcener and members of an HUF is not definite or ascertainable, as their shares keep fluctuating with births and deaths of the coparceners. The coparcener has no absolute right to transfer his share in the coparcenary property, as his share is not definite or ascertainable. The coparceners and members of an HUF are entitled to demand partition of joint status. Besides the coparceners and members of an HUF, Hindu widows under the Hindu Women's Right to Property Act, 1937, are also entitled to demand partition just as her husband could have done. It is reiterated that a wife of a surviving male member cannot claim for partition in the lifetime of her husband.

Inheritance in case of female Karta: It is relevant to point out that in the event of intestate death of a female Karta, her widower does not acquire any share, unlike the right of a widow to acquire her share in case of the death of a male Karta. This is because unlike the widow, the widower of a female Karta is not a member of the HUF.

Similarly, the children of a married female Karta will not inherit a share in the HUF property of which she is a Karta, unless it is acquired by way of a partition. The children of the Female Karta are born in a family other than the one she is a Karta in. Children of a female Karta will be coparceners in the family of their origin, and thus will have only a birth right in the HUF property of their family of origin i.e. in their father's family. But whatever property as a share in the partition the female Karta acquires, it will devolve upon her children or the children of her pre-deceased children, before it reverts back to her father's heirs. [Section 15(2) of Hindu Succession Act]. However, in case where the female Karta dies intestate, the HUF property shall devolve among the HUF members, which does not include the children of female Karta. Though the self-acquired property of a deceased intestate female Karta would devolve according to Section 15 and 16 of the Hindu Succession Act.

Conclusion: As such the main difference between an HUF and a Coparcenary is that all the members of an HUF (including the wives) are equal members of an HUF. However, only blood relations (excluding the wives) up till three generations next to the holder in unbroken descent can be coparceners (after the Amendment in 2005 even daughter are considered as a coparcener). A Coparcenary is mandatorily required to have lineal descendants from a common ancestor up till three generations next to the holder in unbroken descent, whereas there is no such requirement under an HUF. There is no limit as to the number of persons who can compose an HUF, nor to their remoteness from the common ancestor and to their relationship with one another. But they must necessarily be connected with tie of sapindaship.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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