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ABOUT THE AUTHOR
Advocate Dr. Rau P S Girwar is an esteemed advocate and has been involved in the field of law since 2010 and has contested cases in the Supreme Court of India and various high courts including the Punjab and Haryana High Court, Delhi High Court, Indore High Court and various district and sessions courts.
He has an excellence and experience in civil, criminal, constitutional and service matters and has a wide range of experiences in various matters including money laundering, narcotic and murder cases.
This article has been written with assistance of his junior Kushaatula Puhanian, who is a second year law-student studying at the Guru Gobind Singh Indraprastha University, New Delhi.
INTRODUCTION
India is a secular country with every religion having its own personal laws. Hindus have live
in a joint family since long period of time thus accumulating their property in the form of both
joint and separate property which has sometimes create difficulties for the coming generations
and the people of the same generations as to whether the property has to be dealt as joint or
separate after death of the person holding the property. This had been a major problem since
decades and has been solved by the Courts and has been given clarity after the passing of the
Hindu Succession Act in 1956 and further amendment in the year 2005.
This article deals with the incident of coparcenary explaining the meaning if coparcenary
and the types of property that are held by the coparcenary along with amendments brought by
way of judicial decisions and statutes.
WHAT IS A COPARCENARY?
A unique feature of Hindu society is the institution of a joint family system consisting of a male member, his wife, children, his male descendants, their wives, and unmarried daughters. Within this joint family system, there is another unit known as the coparcenary. A coparcenary is a narrower body than a joint family.
It consists of male members only up to and including three generations from the last male ancestor. This consists of:
(i) The father.
ii) The son of the father.
iii) Son of a father’s son.
It includes only those members who by birth acquire a share in the joint property as joint property, being the sons, grandchildren and great-grandchildren of the owner of the joint family property.
The Supreme Court in Narendra v. WT Commissioner[1] noted that the coparcenary is a smaller body that includes only those male descendants up to three generations who have an interest in the coparcenary property by birth.
After the death of a cellmate, his share of the cellmate’s property does not pass to other surviving male members on the basis of the right to survive.
There is a unity of ownership in the coparcenary, which means that the ownership of the property does not belong to a single coparcener.
TYPES OF PROPERTY
Property under Hindu law is divided into two classes:
(i) Joint family property or joint family property.
(ii) Separate property or property acquired independently.
Joint Family Property Or Joint Family Property
It means a property in which all the partners have a common interest and a unity of ownership. The Supreme Court in the case of Bhagwant P Shulakhe v. Digamber Gopal Sulakhe[2] noted that the nature of any joint family property does not change with the termination of the status of the joint family, and the joint family property continues to maintain its joint family character as long as the joint family property exists and is not divided among the partners. By a unilateral act, no member of a joint family has the right to turn any joint family property into their own personal property. Such a property consists of-
(a) Hereditary property: Hereditary property is a type of joint or joint family property. It is a property that comes from the father, the father of the father, and the father of the father of the father. The following property is an inherited property with its collateral characteristics, namely: –
(1) Such property will be inherited, not inherited.
(2) This is a property in which the male offspring of a cellmate acquire an interest by birth.
(b) Property jointly acquired by a member of a joint family: Property that has been acquired by members of a joint Hindu family through their joint work, whether in business, profession or vocation, through joint family property, falls under this category and is treated as joint family or joint property.
(c) Property thrown into the joint fund: Property acquired by the owner, voluntarily thrown into the joint fund with the intention of waiving all individual claims to it, is called property thrown into the general fund. This process is known as blending. The blended property thus becomes part of the joint family property after blending.
(d) Property acquired with the help of members of a joint family: Property acquired with the help and assistance of members of a joint family is also joint. Thus, the accumulation of income, i.e. rent, etc. of joint family property, property acquired from such income, proceeds from the sale or mortgage of such property, and property acquired from such income are considered under the category of joint family property.
Separate Or Independently Acquired Property
Property that is not shared is called independent or separate property. The word “separate” suggests that the family was formerly joint, but has now become separate. When a family member is separated from the joint family, the property acquired by him will be considered as his separate property in relation to his relations with his brothers, but in relation to his sons it will be considered as joint family property.
INCIDENTS OF COPARCENARY
(1) Property by gift: The Karnataka High Court has ruled that if property is donated to a sister by her brother, then after the sister’s death, her son inherits the same, it will be his separate property, not hereditary property.
In Arunachala v. Murudharnath[3], the Supreme Court held that where there is a question as to whether property received by a male Hindu as a gift or bequest from his father, grandfather or great-grandfather will be hereditary or separate, it depends on the intention of the father, grandfather or great-grandfather expressed in the Deed of Gift or will, or must be collected from the terms of the documents surrounding the circumstances. If the grandfather’s intention was for the father to take the property exclusively, the property in the father’s hands would be his separate property. If the father’s intention was to take the property for the benefit of a branch of the family, it would be hereditary property in the father’s hands, for his sons would be equal to him in the right of ownership.
(2) Ownership by joint labor or means: In Lal Bahadur v. Kanhiyalal[4], it was established that if property was acquired by members of a joint Hindu family through their joint work, whether in business, profession or vocation, through joint family property, it becomes joint family or joint property.
The Bombay High Court, in Haridas v. Dev Kuwarbai[5], held that property acquired by the joint labor of family members, even without the aid of joint family funds, is considered joint family property in the absence of any indication of intent to the contrary.
In Bhagwant P Sulakhe (supra), remuneration received by two members of a joint family who formed a firm that was appointed as the managing agent of the company for acting as the managing agent of the company should be considered joint family property when the partnership agreement indicated that two family members became members of the firm that was appointed by the company representing the joint family and for the benefit of the joint family. The Supreme Court held that the nature of any joint family property does not change with the termination of the status of the joint family, and the joint family property continues to maintain its joint family character as long as the joint family property exists and is not divided among the co-partners. By a unilateral act, no member of a joint family has the right to turn any joint family property into their own personal property.
In Gurnam Singh v. Pritam Singh & Ors.[6] The Court held that if the property is acquired by a joint labor fund, even if it was acquired from income derived from income derived from land that was taken on batai and farmed jointly, there would be a presumption of joint ownership, and the property would be treated as joint Hindu family joint property.
(3) Blended property: When a member of a joint family blends his property with the joint family property, he does not perform an act of donation, and this is not a gift.
In K. Abebul Reddy v. Venakata Narayan, the Supreme Court noted that a family is joint and owns joint property, it would be a legal presumption that property owned by an individual member or all family members is joint family property. If a member claims a separate right to a certain part of the joint property, the burden of proving that it is his separate property falls on him.
In Reddi Subrammania V. Venkata Subba Reddi the daughter’s husband brought certain properties that mixed with the general family properties, she became a widow and was infertile. The main consideration, to make something like a family arrangement and therefore a property, was given to her. Other members of the family themselves treated some items of property as separate. The division was carried out on the grounds that the family members mixed the widow’s property as joint Hindu property. The Supreme Court noted that the property inherited by a widow from her maternal relatives cannot be mixed with the property of a joint family.
In the case of Hemchand v. Danchand, it was established that if a member of the board voluntarily renounces his rights to any property and mixes it with joint property, it will be considered joint property. Where he gives away his property in ordinary shares, it will not be treated separately.
(4) Property acquired at the expense of a joint family: In the case of D. Latchandor v. Chinnabadu[7], the Court held that if a member of a joint Hindu family is given certain property to cover his maintenance expenses and he acquires some other property from the income from this property, then all the property acquired by him in this way becomes his separate property.
But in the case of Venkateswara Mania V. Ayyar, the Madras High Court ruled that all property acquired by him in this way would be treated as joint family property in the context of his sons.
In Dayabhaga coparcenary, one coparcener started a film business on joint family property with the consent of the other coparceners. The other inmates didn’t invest in it. The film license was obtained only in the name of one accomplice. It was believed that the film business is not a joint family business just because it is conducted on joint property.
(5) Property at the expense of one’s own income: Property acquired by a Hindu by his own labor would be his separate property, since it is not the result of any joint labor with other members of the joint family property, provided that it does not prejudice the joint property.
In the case of Makhan Singh v. Kulwant Singh, the Supreme Court noted that if a male member of a joint family acquired property from his own income from wages, then such property is his own acquired property.
(6) Property inherited by persons other than the three immediate ancestors: Property inherited by a Hindu from any person other than his father, grandfather, and great-grandfather will be his separate property.
In Madan Lal vhekfbl Chand Jain V. State of Maharashtra the Court ruled that a Hindu may own separate property besides a share in the hereditary property.
(7) Property received as a share of the division: any property received by a Hindu as his share of joint family property, provided that he has no male offspring, will be treated as his separate property. If the Hindu makes some acquisitions after the division by means of joint property, then this property should be considered as his separate property.
(8) Property passing to a single devolving coparcener: any property passing to a single co-coparcener, provided that there is no widow who has the right to adopt or has a child in her womb, will be treated as his separate property.
(9) Property received as a gift through affection: property received as a gift from hereditary property made by the father through affection will be his separate property.
(10) Property received under a government grant: Property received by a Hindu as a government grant is treated as separate property.
(11) Learning benefits: This was a dispute for a long time, which ended with the passage of the Hindu Gains of Learning Act of 1930, which stipulated that no learning benefits should be considered the exclusive and separate property of the acquirer solely for the reasons of learning transferred to him by any member of his family or by means of joint family funds or by means of joint family funds or by means of funds of any family member.
[1] 1970 AIR 14, 1969 SCR (3) 882.
[2] 1986 AIR 79, 1985 SCR Supl. (3) 169
[3] 1953 AIR 495, 1954 SCR 243
[4] (1907) 9 BOMLR 597
[5] 97 Ind Cas 820
[6] 1961 AIR 1263, 1962 SCR (1) 176
[7] AIR 1963 AP 31