CONCEPT OF

COPARCENARY
 HUF UNDER DIFFERENT FAMILY SYSTEMS

• MITAKSHARA SCHOOL:
• based on Yagya Valakya Smrjti
• Vigyaneswar
• followed throughout India except Punjab, Bengal and Assam

• DAYABHAG SCHOOL:
• Jeemutvahana
• Commentaries
• in Bengal and Assam
SCHOOLS OF HINDU LAW

There are TWO principal schools of Hindu Law, namely, the

Mitakshara law, which is prevalent throughout India except
Bengal and the Dayabhaga law which is applicable in
Bengal. The Mitakshara school is further sub-divided into
four minor schools, namely, Benaras School, Mithila School,
Bombay School and Madras School.
MITAKSHARA SCHOOL
• Coparcenery is the feature of Mitakshara school and
each son acquires on birth an equal interest with his
father in all ancestral property held by the father
and on death of father the son takes the property
not as his heir but by survivorship. The essence of
Coparcenery is Community of Interest and Unity of
Possession.
• Includes those persons who acquires interest in joint coparcenary
property by BIRTH, namely:-Sons
• Grand Sons
• Great Grand Sons
• Daughter will also be a Coparcener w.e.f. 09/09/2005 vide Hindu
• Succession (Amendment) Act, 2005.
• Have a right to claim partition.
• A Coparcener is that member of HUF who acquires by birth an
interest in the joint property of the family whether inherited or
otherwise acquired by the family. The members of the family who
are not Coparceners have no right to claim partition.
MITAKSHARA FAMILY SYSTEM
• Mitakshara doctrine: all the property of a Hindu joint family is
held in collective ownership by all the coparceners or the joint
family members then living and thereafter to be born

• Ownership of property starts from the time of birth

• The lineal male descendants of a person up to the third generation,

acquire on birth ownership in the ancestral properties of such
person
• Such descendants can at any time work out their rights by asking
for partition but till partition each member has got ownership
extending over the entire property conjointly with the rest
• As a result of such co- ownership the possession and enjoyment of
the properties is common and thus no alienation of the property is
possible unless it be for necessity, without the concurrence of the
coparceners
• That the interest of a deceased member lapses on his death to the
survivors
CHARACTERISTICS
1. The ownership of property starts from the time of birth.
Along with the father, the sons have equal rights in the
ancestral property during the life time of the father.

2. During the life time of the father there cannot be division

of property among the male members, but after the death of
the father the sons have right over the property.
3. Women do not have equal rights over the family property
as the males have.
4. The management of the property is the duty of the father.
5. If there is any debt in the family then the father has the
right to dispose of the family property to settle the debt.
DAYABHAGA FAMILY SYSTEM
• Dayabhaga doctrine: The right to Hindu joint family property is not
by birth but only on the death of the father
• The father is the absolute owner of his property in his lifetime
• Neither sons nor daughters become coparceners at birth nor do
they have rights in the family property during their father’s lifetime
• Daughters also get equal share along with their brothers
• No child can compel the father to partition of property in his
lifetime and father is free to sell the property without their
consent
• The widow has a right to succeed to husband’s share and
enforce partition if there are no male descendants.
• On the death of the husband the widow becomes a co-
parcener with other brothers of the husband. She can enforce
partition of her share
 CHARACTERISTICS
• The ancestral property cannot be divided during the lifetime of the
father and thus there is no question of claiming any right over the
ancestral property during the life time of the father:
• The head of the family has the sole authority to manage, purchase
or dispose the family property in whatever manner he likes and
only after, his death the question of the division of the property
arises,
• Women also have right over the property.
SIMILARITY BETWEEN MITAKSHARA
AND DAYABHAG COPARCENARY -
• The concept of ancestral property is common to both the systems i.e. it consists of property
inherited from father, grand father or great grand father.
• A coparcenary does not start with females in both mitakshara and dayabhag.
• The powers of karta in a joint family are common.
• Every coparcenar has a right to claim partition in both but the time when such right can be
exercised varies.
• All the presumptions which are applied with respect to joint family and joint family property
are common for both.
DISTINCTION BETWEEN MITAKSHARA
AND DAYABHAG
• 1. Interest by birth - under the mitakshara, copareceners acquire an interest by birth whereas
under dayabhag they do not acquire an interest by birth.
• 2. Defined shares- under mitakshara, all the coparceners hold the property jointly and
everyone’s share is determined with respect to other surviving coparcenars whereas under
dayabhag each heir hold a determined share.
• 3. Unity of ownership – under mitakshara, there is unity of ownership among the coparceners,
there is no unity of ownership under dayabhag.
• 4. Position of females – under mitakshara, no female can be a coparcenar but after Hindu
Succession Amendment , Act 2005 unmarried daughters are the coparceners. Under dayabhag,
female was a coparcener from the beginning under certain conditions.
• 5. Father’s right of dispoaition – under mitakshara, ancestral property cannot be disposed of by
the father without the consent of other coparceners, under dayabhag such disposition is
possible.
• 6. Right to account – under the dayabhag, Members of joint family can ask for an account of the
joint family property from the managing members. Under the mitakshara, they cannot do so.
• 7. Right to partition – under the dayabhag, the right to partition is not available during the
lifetime of the father whereas under the mitakshara, they do have this right.
DISTINCTION BETWEEN
COPARCENARY AND JOINT FAMILY
• 1. joint family is unlimited both as to the number of persons and remoteness of their descent
from the common ancestor, whereas coparcenary is open only to certain members of joint
family.
• 2. coparcenary is limited to male members of the family upto three generartions, no such
limitation in case of joint family.
• 3. since coparcenery is confined to males only, it comes to an end with the death of the last
surviving coparcener whereas joint family continues even after the death.
• 4. every coparcenery is joint family or part of one but the converse is not true.
• 5. joint family is a bigger institution whereas coparcenery is a narrower concept.
CASE LAWS

• Gurupad v. Hirabai, AIR 1978 SC 1239

Supreme Court:
‘widow’s share must be ascertained by adding the share to
which she is entitled at a notional partition during her husbands life
time and the share which she would get in her husbands interest
upon his death.’
• Ganduri Koteshwaramma & Another v/s. Chakiri Yanadi & Anr, (2011)
Supreme Court:
‘The Legislature has now conferred substantive right in favour of the
daughters. On and from September 9, 2005, the daughter is entitled to a share in
the ancestral property and is a coparcener as if she had been a son.’
• CIT v. Parshottamdas K. Panchal [2002] 257 ITR 0096 [Gujarat]

• An individual who receives ancestral property at a partition and who subsequently acquires
family, but has no male issue, would hold that property only as the property of the family.
Under the Hindu law the wife of the coparcener is certainly a member of the family. Whatever
be the school of Hindu law by which a person is governed, the basic concept of a Hindu
undivided family in the sense of who can be its members is just the same. Thus, in order to
constitute a joint family, it is not always necessary that there must be two male members.
• {CIT vs Arun Kumar Jhunjhunwalla & Sons. [1997] 138 CTR 63 (Gauhati)}
• [CGT v. B.K. Sampangiram (1986) 160 ITR 188 (Karn.)]
• [CIT vs. M.M. Khanna (1963) 49 ITR 232 (Bom)].
• {Narendra Kumar J. Modi Vs CIT (1976) 105 ITR 109 (SC)}
• {Man vs. Gaini ILR (1918) 40 All 77}
• {Attorney General of Ceylon Vs A.R. Arunachalam Chettiar & Ors. (1958) 34 ITR (ED) 42
(PC)}