S. Basavaraj, Senior Advocate, Bengaluru.
Coparcenary and Joint Hindu Family are NOT synonymous to each other. Joint Hindu family signifies a big institution which consists of a common ancestor, his mother, wife, male descendants, their wives, widows and unmarried daughters below to any degree. It is based on the sapinda relationship of the members.
Joint Hindu Family It is a creature of law, not of the act of parties. On the other hand coparcenary is a limited body which includes only those male members who have the right by birth in the ancestral property and therefore, they enjoy the right to demand partition in such property. Thus the coparcenary includes the male descendant’s upto three generations, i.e. sons, son’s son and son’s son’s son. After 2005 amendment daughters also.
A Hindu coparcenary is much narrower body than the joint family. It includes only those persons who acquire by birth an interest in the joint or coparcenary property and these are sons, (now daughters) grandsons and great grandsons of the holder of the joint property for the time being. Since under the Mitakshara law, the right to joint family property by birth is vested in the male issue only, females who come in only as heirs to obstructed heritage, cannot be coparceners. (after 2005 amendment this is changed). Outside the limits of coparcenary, there is a fringe of persons, males and female, who constitute an undivided or joint family.
There is no limit to number of persons who can compose it nor to their remoteness from the common ancestor and to their relationship with one another. The joint Hindu family is thus a larger body consisting of a group of persons who are united by the time of Sapindaship arising by birth, marriage or adoption. The fundamental principle of Hindu joint family is Sapindaship.
The joint family differs from the coparcenary on the following points:—
Firstly, the joint family is unlimited both as to the number of persons and remoteness of their descent from the common ancestor whereas coparcenary is open to only certain members of joint Hindu family.
Secondly, a coparcenary is limited to male members of the family who are within the rule of four degrees inclusive of the common ancestor, (now daughters) whereas there is no such limitation in the case of a joint family.
Thirdly, since coparcenary is confined to males only (now daughters), it comes to an end with the death of the last surviving coparcener, whereas a joint family continues even after his death. It may continue with females only.
Fourthly, though every coparcenary is joint family or part оone, the converse is not always true, i.e., EVERY JOINT FAMILY IS NOT A COPARCENARY. A Hindu joint family consists of all persons lineally descended from a common ancestor and includes their wives and unmarried daughters but a Hindu coparcenary is much narrower body and includes only those persons who acquire by birth an interest in the joint or coparcenary property those being the sons, grandsons and great grand sons of the holder of the joint property for the time being.
Fifthly, a joint Hindu family is bigger institution covering in its fold all the male and female members descended from a common ancestor. It includes the unmarried daughters also, whereas a coparcenary is a narrower body. It includes only those persons who acquire by birth an interest in the joint coparcenary property, being the sons, grandsons and great grandsons of the holder of the joint property for the time being.
The illegitimate sons (now daughters) of a coparcener are NOT the members of a coparcenary, although they are entitled to maintenance. Since they are not coparceners, they do not enjoy the right to demand partition. But after the death of the father such illegitimate sons can claim partition and will be entitled to equal share.
The distinction between Mitakshara coparcenary property and joint family property, a Mitakshara coparcenary carries a definite concept; it is body of individuals having been created by law unlike a joint family which can be constituted by agreement of the parties.
When intention is expressed to partition and share of each of coparceners becomes clear and once share of a coparcener is determined, it ceases to be coparcenary. Parties in such an event would not possess property as “Joint Tenants” but as “Tenants in Common”.
WHAT IS JOINT TENANCY ?
Mitakshara coparcenary property is the best example of joint tenancy. The primary incidence of joint tenancy is survivorship, by which the entire tenancy on the death of any joint tenant remains to the survivors, and at length to the last survivor.” This incidence of survivorship ensures that there is no vacancy of possession and if there is only one tenant left, he survives to the entire possession and thus the principle is known as jus accrescendi and is the most important feature of joint tenancy. Thus the interest of each tenant is identical in extent, nature and duration. Therefore, joint tenancy comprises four ideas: unity of possession, unity of interest, unity of title and unity of commencement of title. The right of survivorship is thus the primary incidence of any joint holding.
Joint tenancy can be converted into a tenancy-in-common through very simple means. A simple notice of severance from the joint tenancy would make any person relieved from the joint tenancy. Therefore, if A, B and C are joint tenants and A sends a severance notice to both of them, then A becomes a tenant-in-common with respect to both B and C and his interest in the property (one-third) would devolve on his heirs while B and C would still remain joint tenants with respect to each other with the right of survivorship.
Joint tenancy and Mitakshara coparcenary property are similar. One of the most important ingredients to form a Mitakshara coparcenary would be the incidence of sapindaship which is absent in English law.
WHAT IS TENANCY IN COMMON ”?
Tenants in common are those tenants who hold the same land together by several and distinct titles, but by unity of possession, because none knows his own severalty and therefore, they all occupy promiscuously. Where two or more hold the same land, with interests accruing under different titles or accruing under the same title, but at different periods or conferred by words of limitation importing that the grantees are to take in distinct shares.
There would have to be an equal right of possession to every part and parcel of the property. Thus possession need not be joint, even if there is only unity of possession; the co-ownership would be a tenancy-in-common.
In Hindu law, the concept of tenancy in common is very similar to that of a Dayabhaga coparcenary. In a Dayabhaga coparcenary, if a man dies intestate leaving sons, grandsons by predeceased sons, and great-grandsons whose fathers and grandfathers predeceased him, the inheritance would devolve on the sons, grandsons, and great-grandsons; the grandsons and great-grandsons taking respectively the shares of their predeceased fathers and grandfathers along with the sons.
EFFECT OF HINDU SUCCESSION ACT, 1956
The old Mitakshara rule was that heirs took as joint tenants with right of survivorship in cases where heirs were sons, grandsons, great grandsons or when heirs were grandsons by a daughter who succeeded to their grandfather’s estate provided they were living as members of the joint family at the time of succession or when heirs were two or more widows of the intestate or when heirs were two or more daughters who succeeded to their father . This established practice of Hindu Law was changed by the Hindu Succession Act, 1956, where Section 19 of the Act provides that these heirs will succeed to the estate not as joint tenants but as tenants in common. This makes for far-reaching changes in the Hindu law of succession and read with Section 8 prevents any coparcenary from coming into existence.
The difference between joint tenancy and tenancy in common is not a difference in the nature of tenancy as ordinarily understood. Quite on the contrary, it is a difference in the nature of ownership or more correctly, interest. Therefore, whether the nature is joint or separate is an important consideration as the two envisage different consequences. In joint tenancy, acts of one party would bind the other as they hold under the same title but this is not so in the case of tenancy in common.
S. Basavaraj,
Senior Advocate
Bengaluru
9845065416
Daksha Legal 