Explain the rights of a coparcener / characteristic features of a coparcenary. [U.P.J.S 2001 ]

Within the joint family there exists a system called the coparcenary. The coparcenars are the owners of joint family property. 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 are the sons, grandsons and great-grandsons of the holder of the joint property. After the amendment of The Hindu Succession Act in 2005, a daughter of a coparcener has been included as a coparcener along with the sons of the coparcener.

A coparcenary is purely a creature of law, it cannot be created by act of parties except in the case of an adoption where a stranger is introduced as a member of coparcenary.

Genesis of Coparcenary:

A coparcenary is created in the following manner: A Hindu male, A who has inherited no property at all from his father, grandfather, or great-grandfather acquires property by his own exertions. A has a son, B. B does not take any vested interest in the self-acquired property of A during A’s lifetime. But, on A’s death, he inherits the self-acquired property of A. If B has a son, C, C takes a vested interest in the property by reason of his birth and the property inherited by B from his father, A becomes ancestral property in his hands i.e., B’s hands and B and C are coparceners as regards the property.

If B and C continue joint and a son, D is born to C, he enters the coparcenary by the mere fact of his birth. Moreover, if a son, E is subsequently born to D, he too becomes a coparcener.

Rights of a coparcener / Features of a coparcenary:-

-Management & Enjoyment of Coparcenary property

Following are the rights of a coparcener / features of a coparcenary:

1. Community of interest and unity of possession

2. Share of income

a) Joint possession and enjoyment

i. Unauthorised acts

ii. Formation of company

3. Exclusion from joint family property

4. Maintenance

5. Right to enforce partition

6. Alienation of undivided interest

7. Right of survivorship

8. Manager

1. Community of interest and unity of possession:

No coparcener is entitled to any special interest in the coparcenary property nor is he entitled to exclusive possession of any part of the party as there is a community of interest and unity of possession between all the members of the family.

A coparcener’s interest is a fluctuating interest capable of being enlarged by deaths in the family and liable to be diminished by births in the family. It is only on a partition that he becomes entitled to a definite share.

2. Share of income:

The whole income of the joint family property must be brought according to the theory of an undivided family to the common chest or purse and there dealt with according to the modes of enjoyment of the members of an undivided family.

a) Joint possession and enjoyment:

If any coparcener is excluded from joint possession or enjoyment, he is entitled to enforce his right by a suit.

If any unauthorised act is done by any coparcener without the consent of the other coparceners like erection of a building on land belonging to the joint family or any portion thereof which materially alters the condition of the property, he may be restrained by an injunction.

If a company is formed to hold the property of the family with the consent of all the adult coparceners to preserve the family property and for the benefit of the family, the transaction is binding on all coparceners.

3. Exclusion from joint family property:

If any coparcener is excluded by an act of other coparceners from the use and enjoyment of joint family property or any portion thereof and if the act amounts to an ouster then such a coparcener by an injunction restrain the other coparceners from such an act.

4. Maintenance:

A coparcener, his wife and children of an undivided family is entitled to be maintained out of the coparcenary funds and a member of a joint Hindu family is under a corresponding legal obligation to maintain all the male members of the family, their wives and unmarried daughters.

5. Right to enforce partition:

Every adult coparcener is entitled to enforce a partition of the coparcenary property. The rule is that partition can be demanded by any member of a joint family who is not removed more than 4 degrees from the last holder however remote he may be from the common ancestor or original holder of the property.

6. Alienation of undivided interest:

No coparcener can dispose of his undivided interest in coparcenary property by gift. Nor can he alienate such interest even for value except in Bombay, Madras and Madhya Pradesh.

7. Right of survivorship:

On the death of a coparcener his interest does not pass by succession to his heirs. It passes by survivorship to the other coparceners unless the deceased coparcener leaves behind a heir.

8. Manager:

A coparcener who is a manager/karta has certain special powers of disposition over the coparcenary property which no other coparcener has.