Joint Hindu family and coparcenary

1. The joint Hindu family (HUF)

A joint Hindu family consists of all persons lineally descended from a common male ancestor, together with their wives and unmarried daughters. A daughter ceases to be a member of her father's family on marriage and becomes a member of her husband's, though since 2005 she remains a coparcener in her father's family. The common ancestor need not be alive; the family continues from generation to generation. The term “Hindu undivided family” is the tax-law name for the same unit (Income-tax Act).

Features:

• It is a creature of law, not of contract. Apart from adoption and marriage, no stranger can become a member by agreement.
• Jointness is presumed. Every Hindu family is presumed to be joint in food, worship and estate until the contrary is proved. But there is no presumption that it owns joint property: Srinivas Krishnarao Kango v. Narayan Devji Kango, 1954 INSC 33, AIR 1954 SC 379.
• It is not a juristic person in general law. It is represented by its karta, though it is a unit of assessment for income tax.
• A single male can hold the property of a joint family; when a son is born or adopted, a coparcenary comes into existence again. The family also continues where only female members, such as widows, survive, so long as a son may be adopted into it.

2. The Mitakshara coparcenary

A coparcenary is a narrower body within the joint family. It consists of those who acquire by birth an interest in the joint family property: traditionally the holder of the property and his three lineal male descendants (son, son's son, son's son's son), that is, four degrees counting the holder. A coparcener in the fifth degree has no interest until someone above him in the line dies. Since 9 September 2005 the daughter of a coparcener is also a coparcener by birth, in her own right, in the same manner as a son (section 6(1) of the Hindu Succession Act, 1956).

Formation: a coparcenary arises by birth or adoption into the family. Wives, widows and mothers are members of the joint family but are not coparceners. A coparcenary cannot be created by agreement; the only exception is reunion of persons who were parties to a partition.

Under the Dayabhaga, father and sons do not form a coparcenary; it arises only after the father's death among those who inherit from him.

3. Incidents of coparcenary

• Acquisition by birth. A coparcener (son, and now daughter) acquires an interest in coparcenary property by birth, not on the death of the holder.
• Fluctuating, undefined interest. No coparcener can say that he owns a definite share while the family is joint. His interest diminishes by births and enlarges by deaths, and is ascertained only on partition.
• Unity of ownership and community of interest. The property is owned by the coparcenary as a whole, and every coparcener has a right of joint possession and enjoyment. No one can claim exclusive possession of any part.
• Devolution. Before the 2005 amendment, the undivided interest of a deceased coparcener passed to the others by survivorship, subject to the proviso to the old section 6. For deaths on or after 9 September 2005, it passes by testamentary or intestate succession under the Act, not by survivorship (section 6(3)), and is computed on a notional partition immediately before death.
• Right to partition. Every adult coparcener can demand partition and separate his share.
• Right to maintenance out of the joint funds for himself and his dependants, and a right to have marriage and other ceremonial expenses met.
• Right to restrain improper acts of other coparceners, and to challenge an unauthorised alienation by the karta.
• Restrictions on alienation. A coparcener cannot gift his undivided interest. He may dispose of it by will (section 30 HSA), and in some sub-schools sell it for value.
• Management by the karta, the senior coparcener, who has wide powers to deal with the property for legal necessity or benefit of the estate.
• Accounts only on partition. A coparcener cannot ask the karta to account for past transactions while the family is joint, except for fraud or misappropriation.

4. Daughters as coparceners: section 6 after 2005

The Hindu Succession (Amendment) Act, 2005, in force from 9 September 2005, substituted section 6. The daughter of a coparcener in a Mitakshara family:

• becomes a coparcener by birth in her own right in the same manner as the son (section 6(1)(a));
• has the same rights in coparcenary property as she would have had if she had been a son (section 6(1)(b));
• is subject to the same liabilities as a son (section 6(1)(c)), and can be karta;
• holds property allotted to her as property capable of disposal by will (section 6(2)).

Partitions effected before 20 December 2004 (the date the Bill was introduced) and alienations before that date are protected (proviso to section 6(1) and section 6(5)). “Partition” there means a partition by a registered deed or a decree of court. The Act also omitted section 4(2) (agricultural land tenure laws) and section 23 (restriction on a female heir's right to claim partition of a dwelling house), and section 6(4) abolished the doctrine of pious obligation for debts after 2005. Karnataka had earlier given unmarried daughters coparcenary rights by its own amendment of 1994, as had Andhra Pradesh, Tamil Nadu and Maharashtra.

Vineeta Sharma. Two Benches had disagreed on whether the father had to be alive on 9 September 2005 for the daughter to take. Prakash v. Phulavati, 2015 INSC 793, (2016) 2 SCC 36, said both father and daughter had to be living on that date. Danamma v. Amar, 2018 INSC 84, (2018) 3 SCC 343, gave shares to daughters whose father had died in 2001. A three-judge Bench settled the point in Vineeta Sharma v. Rakesh Sharma, 2020 INSC 487, (2020) 9 SCC 1:

• the right of the daughter arises by birth, so the father coparcener need not be alive on 9 September 2005; the daughter born before or after the amendment is a coparcener (Phulavati and Danamma overruled to that extent);
• section 6 is retroactive, not retrospective: it confers rights from 2005 based on the antecedent event of birth;
• a statutory notional partition under the old proviso to section 6 does not bring about an actual partition or disrupt the coparcenary;
• a plea of oral partition is to be accepted only if supported by public documents and proved like a decree of court; otherwise only a registered deed or decree counts;
• pending suits and appeals were to be decided in line with the judgment, preferably within six months.

5. Problem

F, a Mitakshara coparcener, died in 2003 leaving a son S and a married daughter D (born 1975). The ancestral house has never been partitioned. In 2010 D sues S for partition. S says D has no right as F died before 2005. Decide.

Issue. Whether D is a coparcener entitled to a share though F died before the amendment.

Law. Section 6(1) as amended in 2005; Vineeta Sharma.

Application. D's right arises by birth. It does not depend on F being alive in 2005. Marriage does not affect a daughter's coparcenary status. The house was not partitioned by registered deed or decree before 20 December 2004. On F's death in 2003, his interest devolved under the old section 6 (by survivorship, or by succession under its proviso if a Class I female heir survived); after 2005, D and S are both coparceners in the remaining coparcenary property.

Conclusion. D is entitled to a share equal to S's. S's plea fails.

How this is examined

“Explain the incidents of coparcenary” and “Hindu Succession (Amendment) Act, 2005” both appear in recent KSLU papers. For incidents, list them under headings as above. For the 2005 Act, quote the new section 6 clause by clause, mention the omitted sections, and end with Vineeta Sharma. “Distinguish joint family and coparcenary” is a frequent short note.