Coparcenary under Hindu Law Part – 2

  1. The difference between the Mitakshara School and the Dayabhage School is:
  • In respect of law of succession.
  • In respect of joint family.

Concept of Coparcenary:

Hindu Coparcenary and Hindu Joint Family:

Coparcenary is “unity of title, possession and interest”. Hindu Coparcenary is a much narrower body than a Hindu joint family it includes only those persons who acquire by birth an interest in the coparcenary property, they being the sons, grandsons, and great-grandsons of the holders of the property for the time being.

Coparecenary: The Black’s law dictionary gives a more comprehensive explanation of the term coparcenary. It says, “such estate arises where several take by descent from same ancestor as one heir, all coparceners constituting but one heir and having but one estate and being connected by unity of interest and of title. A species of estate, or tenancy, which exists where lands of inheritance descend from the ancestor to two or more persons. It arose in England either by common law or particular custom. By common law, as where a person, seized in fee- simple or fee-tail, dies, and his next heirs are two or more females, his daughters, sisters, aunts, cousins, or their representatives; in this case they all inherit, and these coheirs, are then called “coparceners”, or, for brevity “parceners” only. By particular custom, as where lands descend, as in gavelkind, to all the mates in equal degree, as sons, brothers, uncles etc…An estate which several persons hold as one heir, whether male or female. This estate has the three unities of time, title and possession; but the interests of the coparceners may be unequal.”[8]

The Dharamasastra and coparcenary:

In Dharmasastra coparceners are referred to as Sahadaee. The term coparceners came to be used as a result of influence of Western Jurisprudence. Therefore, the present concept is not very difficult from the earlier one. The justification of coparcenary according to the Dayabhaga School is that those who can offer funeral oblations (Pindh-daan) are entitled to the property. The concept of Pindh-daan is that the person who offers funeral oblations share the same blood with the person to whom he is offering a Pindh. A coparcenary is purely a creation of law; it cannot be created by act of parties, except by adoption. In order to be able to claim a partition, it does not matter how remote from the common ancestor a person may be, provided he is not more than four degrees removed from the last male owner who has himself taken an interest by birth.[9]

Hindu Law of Succession:

any part of the Hindu law which is yet uncodified is governed by the two Schools i.e. the Mitakshara and the Dayabhaga. According to the Mitakshara School, there is unity of ownership – no person has a definite share as his interest is always fluctuating with the births and deaths in the family. The whole body of coparceners is the owner. There is unity of possession and enjoyment. Further, while the family is joint and some coparceners have children and others have few or none or some are absent, they cannot complain at the time of partition about some coparceners having exhausted the whole income and cannot ask for an account of past income and expenditure. Katyayana expressly states that the joint family property devolves by survivorship that is on the death of a coparcener his interest lapses and goes to the other coparceners.

The difference between Mitakshara and Dayabhaga School’s conception of coparcenary:

The conception of coparcenary under the Dayabhaga School is entirely different from that of the Mitakshara School. Under the Dayabhaga School, sons do not acquire any interest by birth in ancestral property, but the son’s right arises only on the father’s death and the sons take property as heirs and not as survivors.

However, the coparcenary in Hindu law is not identical to the coparcenary as understood in English law. Thus, in the case of death of a member of coparcenary under the Mitakshara law, his interest devolves on the other members by survivorship while under English law, if one of the co-heirs jointly inheriting properties dies, his or her right goes to his or her legal heirs.

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