TABLE OF CONTENTS:
- Introduction
- Coparcenary
- Coparcenay property
- Coparcenary, Survive, Survivor, Survivorship
- Hindu Coparcenary
- Hindu Joint Family and Coparcenary
- Women’s right in ancestral property
- Schools of Hindu:- Mitakshara
Introduction:- In any case, the word “Hindu” is not defined. A Hindu admittedly may or may not be a person professing Hindu religion or a believer in temple worship. A Hindu has a right to choose his own method of worship. He may or may not visit a temple. He may have a political compulsion not to openly proclaim that he believes in temple worship. Idol worships, rituals and ceremonials may not be practised by a person although he may profess Hindu religion. The legislature has not chosen to qualify the word “Hindu” in any manner. The meaning of the word is plain and who is a Hindu is well known. The legislature was well aware that “Hindu” is a comprehensive expression (as the religion itself is) giving the widest freedom to people of all hues, opinions, philosophies and beliefs to come within its fold, M.P. Gopalakrishnan Nair v. State of Kerala, (2005) 11 SCC 45. A person may be a Hindu by birth or by conversion. A mere theoretical allegiance to the Hindu faith by a person born in another faith does not convert him into a Hindu, nor is a bare declaration that he is a Hindu sufficient to convert him to Hinduism. But a bona fide intention to be converted to the Hindu faith, accompanied by conduct unequivocally expressing that intention may be sufficient evidence of conversion. No formal ceremony of purification or expiration is necessary to effectuate conversion, Perumal Nadar v. Ponnuswami, (1970) 1 SCC 605. Hinduism embraces within itself so many diverse forms of beliefs, faiths, practices and worship that it is difficult to define the term ‘Hindu’ with precision. There is very little in common except a vague faith in what may be called the fundamentals of the Hindu religion. Any child, legitimate or illegitimate, one of whose parents is a Hindu by religion and who is brought up as a Hindu is a Hindu. Hence, legitimate children of a Hindu father by a Christian mother who are brought up as Hindus would be governed by Hindu law, CWT v. R. Sridharan, (1976) 4 SCC 489. In a statute dealing with religious endowments, the term Hindu even though not defined may be presumed to stand for people of this country with certain religious beliefs held or form of religious worship by people of this country originally, Commr. for Hindu Religious & Charitable Endowments v. Ratnavarma Heggade, (1977) 1 SCC 525.
To say in short, ancestral property means, as regards sons, property inherited from a direct male lenial ancestor and as regards collaterals property inherited from a common ancestor, Maktul v. Manbhari, AIR 1958 SC 918: 1959 SCR 1099. Per capita means by the number of individuals, opposed to per stirpes (by the number of families). Survivorship means, the living of one of two or more persons after the death of the other or others. Inheritance is in some sort a legal and fictitious continuation of the personality of the dead man, for the representation is in some sort identified by the law with him who he represents. The rights which the dead man can no longer own or exercise in propria persona and the obligations which he can no longer in propria persona fulfil, he owns, exercises and fulfils in the person of a living substitute. To this extent and in this fiction, it may be said that legal personality of a man survives his natural personality; until his obligations being duly performed and his property duly disposed of, his representation among the living is no longer called for, Chiranjilal Shrilal Goenka v. Jasjit Singh, (1993) 2 SCC 507. A perpetual or continuing right to an estate, invested in a person and his heirs. The ‘canons of inheritance’ are the rules directing the descent of real property throughout the lineal and collateral consanguinity of the owner dying intestate, who is technically called the purchaser.
Coparcenary:- Coparcenary is a narrower body than the joint Hindu family and before the commencement of the Hindu Succession (Amendment) Act, 2005, only male members of the family used to acquire by birth an interest in the coparcenary property. A coparcener has no definite share in the coparcenary property but he has an undivided interest in it and it enlarges by deaths and diminishes by births in the family. It is not static, Rohit Chauhan v. Surinder Singh, (2013) 9 SCC 419.
Coparcenary Property : — It means the property which consists of ancestral property and a coparcener would mean a person who shares equally with others in inheritance in the estate of common ancestor, Rohit Chauhan v. Surinder Singh, (2013) 9 SCC 419.
Coparcenary, Survive, Survivor, Survivorship :— Coparcenary is a narrower body than a joint family and consists of only those persons who have taken, by birth, an interest in the property of the holder for the time being and who can enforce a partition whenever they like. It commences with a common ancestor and includes a holder of joint property and only those males in his male line who are not removed from him by more than three degrees. The primary meaning of the word “survive” is to live beyond the life or extent of or to outlive; but it also has a secondary meaning namely, to live after, and as used in the phrase, “If either of my said sons should die without leaving a child which shall survive him”. The word “survivor” usually applies to the longest lives of two or more partners or trustees, and has been applied in some cases to the longest liver or joint tenants and legatees, and to others having a joint interest in any property, Sathyaprema Manjunatha Gowda v. CED, (1997) 10 SCC 684.
Hindu Coparcenary:-
A Hindu coparcenary is a much narrower body than the joint family and it includes only those persons who acquire by birth an interest in the joint or coparcenary property. These are the three generations next to the holder in unbroken male descent (see Mullat Hindu Law, 14th Edn., p. 262, para 213). A Hindu female therefore is not a coparcener. Even the right to reunite is limited under the Hindu law to males (Mulla, p. 430, para 342), Pushpa Devi v. CIT, (1977) 4 SCC 184. Hinduism cannot be defined in terms of Polytheism or Henotheism or Monotheism. The nature of Hindu religion ultimately is Monism/Advaita. This is in contradistinction to Monotheism which means only one God to the exclusion of all others. Polytheism is a belief of multiplicity of Gods. On the contrary, Monism is a spiritual belief of one Ultimate Supreme who manifests Himself as many. This multiplicity is not contrary to on-dualism, Sri Adi Visheshwara of Kashi Vishwanath Temple v. State of U.P., (1997) 4 SCC 606.
In the case of Hindu joint family, the coparceners do not have exclusive rights on any specific property of the family, the property allotted to their shares become specified only on partition. Coparceners also have definite share in the Hindu undivided family, Jagatram Ahuja v. CGT, (2000) 8 SCC 249. Persons inheriting an inheritable estate by virtue of descents from the ancestor which confers on them all an equal title to it. It arises by act of law only, i.e. by descent, which, in relation to this subject, is of two kinds: —
(1) Descent by the common law, which takes place where an ancestor dies intestate, leaving two or more females as his co-heiresses; these, according to the canon of real property inheritance, all take together as coparceners or parceners, the law of primogeniture not obtaining among women in equal relationship to their ancestor: they are, however, deemed to be one heir; and
(2) Descent by particular custom, as in the case of gavelkind lands, which descend to all the males in equal degree, as the sons, brothers or uncles of the deceased intestate ancestor; in default of sons, they descend to all the daughters equally.
Hindu Joint Family and Coparcenary :- A joint family could be considered to be a family only when they are sharing a common residence and common mess, Kandarpa Sarma v. Rajeswar Das, (2011) 14 SCC 752. A joint Hindu family consists of persons lineally descended from a common ancestor and includes their wives and unmarried daughters. The daughter, on marriage, ceases to be a member of her father’s family and becomes a member of her husband’s family. The joint Hindu family is thus a larger body consisting of a group of persons who are united by the tie of sapindaship arising by birth, marriage or adoption. The fundamental principle of the Hindu joint family is the sapindaship. Without that it is impossible to form a joint Hindu family. With it as long as a family is living together, it is almost impossible not to form a joint Hindu family. It is the family relation, the sapinda relation, which distinguishes the joint family and is of its very essence. 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, Surjit Lal Chhabda v. CIT, (1976) 3 SCC 142. Joint family Means a Hindu undivided family and in the case of other persons, a group or unit, the members of which are by custom, joint in possession residence, [Section 3(p), Delhi Apartment Ownership Act, 1986.
A Hindu joint family consists of all persons lineally descended from a common ancestor and includes their wives and unmarried daughters. A Hindu coparcenary is a much narrower body than the joint family; it includes only those persons who acquire by birth an interest in the joint or coparcenary property, these being the sons, grandsons and great-grandsons of the holder of the joint property for the time being, Gowli Buddanna v. CIT, AIR 1966 SC 1523: (1966) 3 SCR 224: (1966) 60 ITR 293.
Women’s right in ancestral property:- In order to bring social change, the Hindu Women’s Rights to Property Act,1937 was enacted. Under this enactment, this law puts the widow of a member of the hindu joint family in the place of her deceased husband and that the husband’s interest in the hindu joint family property under the Mitakshara joint family. Later, the Hindu Succession Act, 1956 was introduced and then widow has got coparcenary interest and thereby under Section 14 of the Hindu Succession Act,1956, her right to property becomes absolute. See. V. Tulasamma v. Sesha Reddy,(1977) 3 SCC 99. It is pertinent to note that under section 6 of this Act,
In order to bring social change, the Hindu Women’s Rights to Property Act,1937 was enacted. Under this enactment, this law puts the widow of a member of the hindu joint family in the place of her deceased husband and that the husband’s interest in the hindu joint family property under the Mitakshara joint family. Later, the Hindu Succession Act, 1956 was introduced and then widow has got coparcenary interest and thereby under Section 14 of the Hindu Succession Act,1956, her right to property becomes absolute. See. V. Tulasamma v. Sesha Reddy,(1977) 3 SCC 99. It is pertinent to note that under section 6 of this Act, a male, who has interest in the Hindu joint family property, must be governed by Mitakshara. Before 2005 Amendment, a male member of a joint family and his sons, grandsons and great-grandsons constitute a coparcenary and so woman was then not considered to be a coparcenary, see. State of Maharashtra Vs. Narayan Rao, (1985) 2 SCC 321. By virtue of insertion of Chapter II A into the Hindu Succession Act,1956 of by the State of Andhra Pradesh vide. sections 29A, 29B & 29C. Sec. 29A, these provisions stipulate that in a joint family governed by Mitakshara law, by birth, the daughter shall become a coparcener in her own right and has the same rights in the coparcenary property. As affirmed by the Hon’ble Apex Court in Sec. 29B of the Act provides for devolution of such interest by survivorship. See. S. Sai Reddy v. S. Narayan Reddy, (1991) 3 SCC 647. After several years, Section 6 of the Hindu Succession Act, 1956, as substituted by Hindu Succession (Amendment) Act,2005, w.e.f 09-09-2005, coparcenary right on daughters was confirmed. How daughter acquired right of coparcenary under Mithakshara coparcenary is explained in Vineeta Sharma Vs. Rakesh sharma, (2020) 9 SCC 1.
Schools of Hindu:- Mitakshara :- Under Mitakshara School of Hindu Law all the property of a Hindu joint family is held in collective ownership by all the coparceners in a quasi-corporate capacity. The textual authority of the Mitakshara lays down in express terms that the joint family property is held in trust for the joint family members then living and thereafter to be born, SBI v. Ghamandi Ram, (1969) 2 SCC 33, Para 5. Dayabhaga:- One of the schools of Hindu Law, Uma Kanta Bhattacharjee v. Bedbati Debi, 1941 SCC OnLine Cal 159, Para 1. under the customary law, Marumakkattayam /Aliyasanthana law:- It is considered as the customary law by which some communities on the West coast of South India were governed. Coming to Marumakkattayam, it applies to all castes, In practice, Aliyasanthana is not followed by Brahmins and that it is basically followed by the Bunts, Bilwa caste and the non-priestly class among the Jains.