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Understanding a Coparcener and Property Rights in a Hindu Undivided Family

Understating your rights to your property is crucial to your existence, no matter which country you are living in. However, most of the time, ordinary citizens have no in-depth idea about legal terminologies related to property rights. When it comes to Hindu Law and property rights, coparcener is a concept that is at the centre of your rights to property. But what is the coparcener meaning in law? Or rather, what is meant by coparcenary in Hindu law? This article is an attempt to give an overall idea of a coparcener and its relation to property rights in a Hindu family.   

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What Does Coparcener Mean?

The word coparcener has its origin in the Late Middle English era and, according to Lexico, coparceners mean a person who has equal shares with others in the inheritance of an undivided estate. The Collins dictionary defines the term as a person who is a coheir and inherits an estate with others. In the context of Hindu laws, a coparcener is a person who has a legal right to his ancestral property by birth.  

What is a Hindu Undivided Family (HUF)?

What is a Hindu Undivided Family (HUF)?
Hindu Undivided Family

The joint or undivided state of a Hindu family is presumed to be a normal condition in Hindu society. The whole concept of a joint Hindu family starts with a common ancestor. An undivided Hindu family includes all persons who descended lineally from that common ancestor including the wife (or wives) and unmarried daughters. To constitute a joint Hindu family, there must be two members whether male or female. A Hindu joint family comes into existence because of this common ancestor; however, the continuance of this joint family does not depend on his existence. According to Sir Dinshah Mulla, a daughter is no longer a part of this joint family after her marriage as she is now a part of her husband’s family. 

What is Coparcenary Property in Hindu Law?

What is Coparcenary Property in Hindu Law?
Coparcenary Property in Hindu Law

The ancestral property of this joint family is known as coparcenary property which does not include the self-acquired properties. If the property is inherited by the four generations of the male lineage, it is called the ancestral property. Even though Hindu Law gives the power to manage this ancestral property to the head of a Hindu Undivided Family or Karta, the rights over this ancestral property or coparcenary property in Hindu Law are shared by the coparceners. 
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Who is Referred to as the Coparcener Under the Hindu Law?

A Coparcenary under Hindu Law is a narrower body than the Hindu joint family itself by definition. Before there is the commencement of the Hindu Succession (Amendment) Act, 2005, the concept of coparcenary under Hindu law typically related to a coparcener was the male member of the family who acquired their interest in the coparcenary property by birth. The eldest member of a HUF and the following three generations constitute a coparcenary under the Hindu Law. This means the list of coparceners in a coparcenary is made of the head of the family or Karta along with his sons, grandsons, and great-grandsons. Following the Mitakshara system, this interest over coparcenary property is acquired by birth. Whenever there is a birth of a son in the family, he becomes a coparcener in HUF and acquires his undivided interest over the coparcenary property naturally. This means the share of coparceners in a property is not static. It can be diminished or enlarged by the birth or death of any other members of the coparcenary respectively. However, one’s interest in the property remains undivided.     

What are the Rights and Duties of a Coparcener in HUF?

What are the Rights and Duties of a Coparcener in HUF?
Rights and Duties of a Coparcener

There are some rights and limitations of a coparcener under the Hindu Succession Law. These are:

Communal Interest and Possession

According to Hindu Law, under no circumstance, a coparcener enjoys exclusive possession of or any special interest in coparcenary property. The members of a coparcenary have a shared unity when it comes to their right over such a property.
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Share of the Coparceners

As a coparcenary follows the Mitakshara system, the share of a coparcener is decided by the survivorship. The share fluctuates whenever there is a birth or death in the family. This share becomes defined only in the case of a partition. 

Right to Joint Possession

Every member of a Coparcenary has the right to joint possession and to enjoy ancestral property. One can exercise this right to possession if he is ostracised by the other members of the family. 

Right of Maintenance

A coparcener is entitled to receive maintenance from the estate of his family. He is to receive this maintenance for his wife and children. In the case of his children’s marriage or any other ceremony, he is entitled to receive money from the property. 

Restraining Improper Use

If any coparcener misuses the family estate or attempts unauthorised altering of the material condition of the estate, other members can restrain him under Hindu Law.

Right to Demand Partition

According to the Hindu Succession Law, both the minor and adult coparceners have the right to demand a partition of the family property. However, this does not mean he can claim a definite share as they become definite only after the partition.
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Right to Alienation

No member of a coparcenary, including the Karta, has the right to alienate his interest over ancestral estate under usual circumstances. However, only the Karta of the family has the power to alienate joint family property only if there is any legal necessity, for the benefit of the estate, or to take care of other indispensable duties like religious duties.

Right to Manage

The Karta of a HUF has the power to manage the family estate. However, that does not affect the interest and share of the other coparceners. 

What are the Recent Amendments for a Coparcener?

What are the Recent Amendments for a Coparcener?
Recent Amendments for a Coparcener

Can women become coparceners?

Before the Supreme Court of India modified the Hindu Succession Act, of 1956, married women in India had no legal standing to inherit their husband’s family property. According to the laws of antiquity, women couldn’t legally serve as coparcenaries.

The Hindu Succession (Amendment) Act, of 2005, which made changes to the succession law, officially recognised women as coparceners. As of today, the family’s sons and daughters are both co-owners of the home. A daughter’s participation in the property continues even if she marries, and upon her death, her offspring automatically become coparticipants in the property. The legal status of a daughter in regard to ownership was murky until 2005.
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Until the rule was changed in 2005, all coparceners of a HUF were men, while women were simply members. Since they were different, their legal protections were different. Daughters and mothers were only entitled to maintenance payments from the HUF’s assets, but a coparcener might legally seek a division of the property. They would get half of whatever was divided when that happened. However, they lacked the legal grounds for a divorce.

When a daughter gets married, she automatically ceases to be a member of the HUF and, as a result, loses any claim she may have had to maintenance payments or a share of the HUF’s assets in the event of a partition of those assets after the marriage. Additionally, women were not permitted to become Karta of a HUF; only men were.


Daughter’s Rights to a Property Post-2005

Until very recently, under the Hindu Succession Act, 1956, women of a HUF did not have any right over ancestral property. An unmarried woman was a part of a joint Hindu family till her marriage and never a part of the coparcenary. With the amendment of the Hindu Succession Law in 2005, the Supreme Court of India gave the daughters equal rights in their ancestral property.Headed by Justice Arun Mishra, a three-judge bench passed the verdict that daughters are also coparceners by birth and will remain so throughout their lives even if the father is dead before the Hindu Succession (Amendment) Law,2005 came into effect. Therefore, daughters now also possess the power to demand a partition.

However, we should keep in mind the fact that a married daughter is no longer considered a part of the HUF; she is only a part of the coparcenary. At the same time, only a daughter born in that joint family is a part of the family’s coparceners. Any other woman who is a part of that family through any marital alliance is not a coparcener of that family.  

A Married Daughter’s Right to Property Under the Hindu Succession Amendment Act (2005)

It is important to note that in the case after the marriage of a daughter, the daughter ceases to be a part of her parental HUF, but rather continues to remain a coparcener. That means, she is also entitled to request for the partition of her HUF property and also become the Karta (in case she is the eldest). After the case of the married daughter’s death, entitled children will receive the shares. However, a daughter cannot gift the HUF property’s share while she is alive but can pass it on to the legal heirs upon her passing. The top court bench noted as per press reports: “A perusal of Section 15 of the Hindu Succession Act, indicates that heirs of the father are covered in the heirs (of the property), who could succeed. When the heirs of the father of a female are included as a person who can possibly succeed, it cannot be held that they are strangers and not the members of the family qua the female.”

Can a Hindu Widow’s Parental-Side Kin Inherit Her Property as per Supreme Court Rules?

As per a recent update in the month of February 2021, a Supreme Court ruling noted that the family members on the parental side of a widow of a HUF family cannot be held as strangers, and rather her property can proceed to be devolved upon them as part of the Hindu Succession Act. As per the related case, it was clarified that the father’s heirs are covered as persons who are entitled to the property’s succession.

Impact on Women brought about by the 2005 Hindu Succession Amendment Act

Following the enactment of new language in Section 6 of Hindu Succession Act on September 9, 2005, females now have the same legal standing as sons when it comes to inheriting property and can use the coparcener designation.

A girl born into a combined Hindu household governed by Mitakshara law will, as of the date of the Act’s implementation, enjoy the same rights to her father’s coparcenary property as he does to his son’s. Partitions and bequests are just two examples of conveyances that are not affected by this provision because they occurred before December 20, 2004.

As a result, daughters can now act as the Karta of a HUF and ask for a fair share of the family’s property. But only daughters can make the transition from member to coparcener. This indicates that only the female members of the family are eligible for coparcenary status. HUFs recognise married women as full members in all respects. It is important to note that after a daughter marries, she will no longer be regarded as a member of the parents’ HUF. But the HUF will still count her as a coparcener. If she passes away, her children would be eligible to a portion of the HUF’s property when it is divided. In the event that she has no surviving children, her grandkids may be entitled to inherit her estate.

The Supreme Court has affirmed the coparcenary rights of daughters. Uncertainty about whether Section 6 is prospective or retrospective and whether it applies to women born after 2005 has led to differing interpretations of said 2005 amendment by several high as well as the Supreme Court over the past 15 years. According to a Supreme Court ruling from August 11, 2020 (Vineeta Sharma v. Rakesh Sharma & Others): daughters shall retain coparcenary rights on their father’s property even though he died well before Hindu Succession (Amendment) Act, 2005 entered effect.

According to the revised Section 6 of the Hindu Succession Act, “daughters born before or after the change are given coparcener status (equal shareholders while inheriting properties),” giving them the same rights and responsibilities as sons when it comes to property inheritance. The Supreme Court concluded that the 2005 amendment was retroactive because “the right to coparcency is founded on birth,” meaning that the father of a coparcener need not be alive on September 9, 2005 (the day the statute took effect). However, the statement makes clear that any recorded settlements or partition litigation decreed before to December 20, 2004 will not be revisited.

Why a Coparcener may Claim a Partition of the HUF, but the Member cannot do the Same?

Why a Coparcener May Claim a Partition of the HUF, but the Member Cannot do the Same?
Coparcener may claim a partition of the HUF

A member in a HUF means all those people who are the lineal descendants of a common ancestor including the wives and the unmarried daughters. However, under Hindu Law, a coparcener is the male member born into that HUF and only a coparcener has the rights over the ancestral property. This means not all members of a Hindu family coparcener, thus, not all members can demand a partition. Only a coparcener can demand so. Here are some things to keep in mind regarding the partition of a coparcenary property:

Partition of a Coparcenary Property

Under the Mitakshara Law, a partition in a joint family not only means the division of the property but also the demolition of its joint status. This division of property is only limited to the coparcenary property and does not include any property acquired separately. The share of each coparcener can also be decided only after the partition. 
 

Who has the right to demand a partition?

Any coparcener can demand a partition whether minor or adult. This list of coparceners includes: 

  • Father
  • Son/ grandson/ great-grandson
  • After the amendment of 2005, daughters are also coparceners and can demand a partition.
  • On behalf of a minor coparcener, his/her guardian can demand a partition.

Modes of partition:

  • Partition by father
  • Partition by agreement
  • Partition by suit
  • Partition by conversation
  • Partition by arbitration
  • Partition by conversion to another religion
  • Partition by special marriage
  • Partition by notice

What are Some Important Points to Keep in Mind about the Alienation of Coparcenary Property?

The head of the family or Karta of a joint Hindu family can alienate the property with the consent of all the coparceners. However, a Karta can only alienate for the purposes like legal necessities, the benefit of the estate, or other unavoidable duties. Some things that you should keep in mind regarding the alienation of the coparcenary property are:

  • The nature of the necessity must be clear 
  • The necessity must not be illegal
  • The necessity must not alter the material condition of the estate
  • The necessity must not arise as a result of mismanagement of the Karta

In a Hindu Undivided Family coparcenary, a relationship exists naturally and this makes knowing about your coparcenary right even more important. You must be careful while handling your rights in coparcenary property and seeking some guidance from legal experts is always a better option. This is where NoBroker can help you. Our experts at NoBroker can help you manage your interest in your coparcenary. All you need to do is visit our legal section and drop your questions.   

FAQs

Q1. What is a Hindu Undivided Family (HUF)?

Ans. A Hindu Undivided Family consists of a common ancestor and all his lineal descendants including their wives and unmarried daughters. There should at least be two individuals to form a joint or undivided Hindu family. They can be male or female. Two female members can constitute a joint family. The existence of joint family property is not required for the existence of a joint Hindu family.

Q2. Who the difference between a member and a coparcener in Hindu Law?

Ans. Under Hindu Law, the coparcener is a term to indicate those male members of a Hindu family who have an undivided interest over the ancestral property by birth. They are the head of the family or Karta and the three subsequent generations of the Karta which include his sons, grandsons, and great-grandsons. After the 2005 amendment of the Hindu Succession Law, a daughter of the family is also considered a coparcener. Whereas all those people in a Hindu family who linearly descend from a common ancestor are called members including the wives and the unmarried daughters. Therefore, coparceners are the members of a joint Hindu family but not all the members of a joint family are coparceners. Moreover, a married daughter is a coparcener but no anymore, a member of a HUF.  

Q3. Is the self-acquired property being coparcenary property? What does the coparcener meaning imply?

Ans. No, the self-acquired property does not come under coparcenary. Coparcenary property has the meaning same as the term ancestral property of a joint Hindu family. Any property which is inherited up to three generations is known as ancestral property excluding the self-acquired property, thus, coparcenary property. The coparceners in a HUF have equal rights over coparcenary property but not over the self-acquired property.

Q4. Do women have rights over their paternal property?

Ans. When it comes to the rights of coparceners for women, according to the Hindu Succession Law, 1956, women were not considered a coparcener in a joint Hindu family. They did not have any right over their ancestral property before the 2005 amendment of the Hindu Succession Law. The 2005 amendment gave women equal rights over their ancestral property as their male counterparts. 

Q5. Who can demand a partition?

Ans. Any coparcener in HUF can demand a partition of coparcenary property. Under the Mitakshara law, a partition means the division of ancestral property as well as the severance of the joint status of the family. 

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Vivek Mishra

With over 23 years of experience in Real Estate, and an architecture degree, Vivek is here to help others buy/sell or rent the right way. Through his writing you will find out what people look for, and what you can do to get the best out of your home, and also how to get the best for your home.

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