Separate
coparcenaries may exist within a coparcenary as we have seen in the foregoing
illustration. There can be a big coparcenary consisting of a father, his son,
grandsons and great grandsons. There can be a coparcenary comprising sons and
their descendants also. If the father has separate property, on his death, the
sons inherit the property jointly. If a child is born to one of the sons, he
will form a coparcenary within a coparcenary.
Coparcenary is the creation of law. Only
a coparcener has a right to demand partition. Coparcener heirs get right by
birth. However now, by substituted section
6, of Hindu Succession Act,1956 with effect from 9th September
2005, daughters are also recognised as coparceners in their rights, by birth in
the family like a son.
Suppose P and three sons, Q, R and S acquire
the separate property then when Q dies his separate property can be acquired by
his sons QS1, QS2 and they can form a separate coparcenary themselves. This
concept is called Coparcenary within the Coparcenary.
Hindu law recognizes only the entire joint
family or one more branch of that family as a corporate unit or units and that
the property acquired by that unit in the manner recognized by law should be
considered as joint family property. Coparcenary is a creature of Hindu Law.
The law also recognizes a branch of the family as a subordinate corporate body.
The Madras
High Court illustration the point in Nachiappa
vs. Commissioner, Income Tax. A and his son A constituted a coparcenary.
Partition took place between them and they were assessed separately in
income-tax. The sons born to A will constitute a separate coparcenary. After sometime he reunited with his father A,
he took the plea with the Income- Tax authorities that the coparcenary with his
son has come to an end and hence he would not be liable for paying income-tax
on that front. The Court rejected the agreement by saying that his coparcenary
continued to have a separate existence. One of the major confusions came in the
property of Hindu Undivided family Is the field of taxing.
No coparcener is entitled to
exclusive possession of any part of the coparcenary property; nor is any
coparcener entitled to any special interest in such property.
●
Share of Income:
A member of a joint family cannot, at any given moment, predicate
what his share in the joint family property is. Such a share becomes defined
only when a partition takes place. The reason is that his share is a
fluctuating one, which is liable to be increased by deaths, and diminished by
births, in the family. It follows from this that no member is also entitled to
any definite share of the
●
Joint possession and enjoyment:
Each coparcener is
entitled to joint possession and enjoyment of the family property. If he is excluded from
doing so, he can enforce this right by way of a suit. He is not, however, bound
to sue for partition. In a suit for joint possession, the Court would declare
his right to joint possession, and further direct that he should be put into
such joint possession.
●
Right to ask for accounts :
A coparcener may demand an account of the management of joint property
so that he may know the actual state of family funds when the coparcener is
suing for partition. If such demand is met by refusal, he is entitled to
restrain the other coparceners for excluding him from management thereof.
●
Right to maintenance :
A coparcener’s wife and children are entitled to be maintained out of the coparcener funds and the members of a joint Hindu family are under a legal obligation to maintain all the members of the joint Hindu family.
Written By:
K. Rohini [2nd Year, BA.LLB(Hons.)] under the guidance of Dr. Nagalatha Bathina, Associate Professor, Vignan Institute of Law.
Editorial Director:
Dr. Nagalatha Bathina, Associate Professor, Vignan Institute of Law.
Editors:
Dr. Praveen Kumar, Director, Vignan Institute of Law
Mr. L. Ashish Kumar, Assistant Professor, Vignan Institute of Law
Blog Managed By:
Taj Mahamood Baig [2nd Year, BA.LLB(Hons.)]