(i) and community of interest. No coparcener

(i) First, the lineal male descendants of a person upto third generation, acquire on birth ownership in the ancestral properties of such person, (ii) Secondly, that such descendants can at any time work out their rights by asking for partition; (iii) Thirdly, that till partition, each member has got ownership extending over the entire property conjointly with the rest; (iv) Fourthly, that as a result of such co-ownership the possession and enjoyment of properties is common; (v) Fifthly, no alienation of the property is possible unless it be necessity, without the concurrence of the coparceners; (vi) Sixthly, that the interest of the deceased member lapses on his death to the survivors;” The following are the characteristic features of the Mitakshara coparcenary:

(1) Unity of Ownership:

The essential feature of a Mitakshara coparcenary property is unity of ownership, i.e., the ownership of property is not vested in a single coparcener.

It is vested in whole body of coparcenary. According to the true notion of an undivided family governed by the Mitakshara law, no individual member of that family whilst it remains undivided, can predicate, of the joint and undivided property, that he has a definite share. In Thammavenkat Subbamma v. Thamma Ratamma, the Supreme Court affirming the above view held that the essential feature of Mitakshara coparcenary is unity of ownership and community of interest. No coparcener has any definite share in the coparcenary property although his undivided share is existent there, which increases with the death and decreases with the birth of any coparcener.

The coparcener acquires an interest in coparcenary property by birth, which is equal to that of his father.

(2) Indeterminability of Shares:

The interest of a coparcener in the coparcenary property is a fluctuating interest which is liable to diminish with the birth and bound in increase with the death of any coparcener in the family. So long the family remains united; no individual coparcener can predicate that he has a definite share in the property of the family.

In Commissioner of Gift-tax v. N.S. Getty Chettiar, the Court upholding the above view held that so long the family remains undivided; no individual coparcener can claim any specific share in the joint family property.

All the coparceners are the owners of entire joint family property. Their shares can be specified only after the partition is effected in the joint family. The share of any coparcener is thus unpredictable and unspecified before partition. Recently, in Munni Lal Mahto and others v. Chandeshwar Malito and others, the Court upholding the above view held that if any coparcener of joint Hindu family transfer the coparcenary property by way of gift without consent of other coparceners, it is void, because all the coparceners are the owners of entire joint-family property and joint family continues, and the coparcenary interest is an indeterminate. It becomes determinate only when the states of jointness is broken.

(3) Community of Interest:

There is community of interest in the coparcenary property. The moment a person is born in the family, he acquires an interest in the coparcenary property in the sense that he has a right of common enjoyment and common use of all the properties, because as soon as he is born as a son, he assumes the membership of the community. It also signifies that no coparcener is entitled to any special interest in the coparcenery property, nor is he entitled to exclusive possession of any part of the property. As it has been rightly observed by the Privy Council that “there is community of interest and unity of possession between all members of the family.” No coparcener can say with certainty that he is entitled to one half or one fourth as it is the essence of coparcenary property that there is community of interest and unity of possession.

The shares of individual coparceners cannot be defined. All the coparceners have a right of common enjoyment or common use of the property. It signifies two implications: firstly, possession of one coparcener in the possession of all coparceners, and secondly, no coparcener has a right of exclusive possession of any portion of joint property.

(4) Exclusion of Females:

In Mitakshara coparcenary no female can be its members, though they are members of joint family. Even the wife who is entitled to maintenance enjoys only the right to maintenance but she can never become a coparcener.

Thus a female does not have the right to demand partition. Since she is not a coparcener, she cannot become the Karta of the family. An alienation of the property of the joint family by her will not be binding on her sons and daughters. The alienation of her own share is not binding upon herself.

It is worthwhile to mention that the Hindu Women’s Right to Property Act, 1937, conferred a special status on the widow and made them eligible to inherit the coparcenary interest along with her sons, although she took it as a limited estate. Thus she acquired the status like that of coparcener entitled to a share, equal to that of her sons. For example, A who constitutes a coparcenary with his two sons, namely,  and C, dies leaving behind his widow, W, two sons,  and C. Under the Hindu Woman’s Right to Property Act, 1937, W inherited the coparcenary property along with  and Ñ and would get 1/3 share each.

(5) Devolution by Survivorship:

One of the distinctive features of coparcenary is that the coparcenary interest of a coparcener in coparcenary property on his death does not devolve on his heirs by succession but on the other hand it passes by survivorship to the other coparceners. Thus right by birth and right of survivorhsip are necessary incidents of community of interest and unity of ownership, which signify joint possession not an exclusive possession.

(6) Right of Maintenance:

All the members of coparcenary are entitled to maintenance by birth out of joint family property. They continue to enjoy this right so long the coparcenary subsists. Where any member fails to get any share on the coparcenary property even after partition he retains the right of maintenance. Some special provisions have to be made for them at the time of partition. Female members and other male members who do not get a share on partition such as unmarried daughters, idiots or lunatics, are entitled to maintenance out of joint family property.

Unmarried daughters have a right to be married out of joint family funds. Where a coparcener married under Special Marriage Act, 1954, he is separated from coparcenary. He can form separate coparcenary along with his male descendants.


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