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11 Main Rights of Coparceners before Hindu Succession (Amendment) Act, 2005

The followings are the rights of coparceners in the coparcenary:—

(1) Rights of Common Possession and Common Enjoyment:

There is unity of possession and the right of common enjoyment in the joint family property available to all the coparceners. According to Privy Council—”there is community of interest and unity of possession between all the members of the family and upon the death of any one of them, the others may well take by survivorship that in which they had during the deceased’s lifetime a common interest and a common possession. No one is entitled to exclusive possession of any part of it.”

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(2) Community of Interest:

No coparcener has got any defined share in the coparcenary property, or in the income of the property. In a Hindu undivided family governed by the Mitakshara law, no individual member of that family, while it remains undivided can predicate that he has a certain definite share in the property of the family.

But the Karta may allot to a member a particular property out of income whereof he is to maintain himself, saving out of such income and property purchased there which becomes the member’s separate property.

(3) Right to Joint Possession:

Each coparcener is entitled to joint possession and enjoyment of the family property. Thus where a coparcener was prevented by the other members of joint family from using a door or a staircase leading to the room in his occupation, it was held that he was entitled to an injunction restraining the other members from disturbing the use of his door or the common staircase.

(4) Right to Enforce Partition:

Every coparcener including the minor is entitled to demand partition of his share. This right can be claimed against his father or brother or the father and grandfather. He has right to enforce partition at his will whether the other coparceners agree to it or not.

But the coparcener willing for separation must expressly communicate his desire to other coparceners; the mode of communication may be different in different circumstances. It is not necessary that other members have been formally informed about his desire. Once the desire is pronounced, it effects a change in the joint status of the family and it is not possible for the separating coparcener to restore its former status although where an agreement is reached between the coparceners later, the reunion becomes possible.

(5) Right to Restrain Unauthorised Act:

A coparcener may restrain any unauthorised act e.g. erection of a wall or construction of a building etc. of another coparceners in respect of coparcenary property if such act interferes in any way the joint enjoyment thereof.

(6) Right to Ask For Account:

A coparcener may demand an account of the management of joint property in order to have correct knowledge of the actual position of family funds. Thus where a member of the joint family was prevented by the other members from entering a shop owned by the joint family, inspecting the account book and taking part in the management of the shop it was held that the latter could be restrained by an injunction from excluding the former from the joint possession and management of the property.

(7) Right of Alienation:

A coparcener may alienate his undivided share in the coparcenary property by gift or mortgage or sale with the consent of other coparceners. But according to the views of Madras, Bombay and Madhya Pradesh High Courts a coparcener could alienate even without such consent.

According to a judgment of Allahabad High Court the Mitakshara law as it is applied in Uttar Pradesh provided that except in cases of legal necessity and payment of antecedent debts, any alienation of joint family property will be void. The undivided share in a coparcenary could not be disposed of by a coparcener even by a will. This rule of Mitakshara law stands now abrogated by the Explanation to Section 30 of the Hindu Succession Act, 1956.

In Thamma Venkat Subbamma v. Thamma Rattamma, the Supreme Court held that a gift by a coparcener of his undivided interest in the coparcenary property is void. The reason as why a coparcener is not entitled to alienate his undivided share in the coparcenary property by way of gift is that an individual member of the joint family has no definite share in the coparcenary property; a coparcener cannot deprive the other coparceners of their right to the property. The object of this strict rule against alienation by way of gift is to maintain the jointness of ownership and possession of the coparcenary property.

There is no specific textual authority prohibiting an alienation by gift and the law in this regard has developed gradually, but that is for the purpose of preventing a joint Hindu family from being disintegrated. The vigour of this rule against alienation by gift has been to some extent relaxed by the Hindu Succession Act, 1956, through its Section 30.

(8) Right to Set Aside the Alienation:

Every coparcener has the right to set aside alienations made by the father, or the Karta or any other coparcener beyond his authority. Such unauthorised alienations could also be set aside at the instance of any after-born coparcener. The unauthorised alienations include firstly, alienation without legal necessity; secondly, transactions incurring illegal expenses; thirdly, alienations without any benefit to estate and such alienations would be void.

Where one of the coparceners sold away certain part of the immovable property without any legal necessity, it was held that other coparceners are entitled to cancellation of sale deed and recovery of possession. Similarly where the entire house and the land are sold away by a coparcener in order to purchase another land and to get a new house constructed over it without any such need as the old house was in good condition and the transaction did not bring any benefit to the estate, the court held that such alienation could be set aside at the instance of other coparceners.

Where the alienation of joint family property has been approved by some of the coparceners while the others have not consented to it, the alienation would not be binding on those who have not given their consent to it. The lawful alienations made by the father cannot be avoided by the sons, but where the alienation is unlawful the sons, born before or after the alienation could get it set aside.

(9) Right to Maintenance:

A coparcener’s wife and children are entitled to be maintained out of coparcenary funds and a member of a joint Hindu family is under a correspending legal obligation to maintain all the male members, their wives and unmarried daughters in the joint family.

(10) Right to Renounce Interest in Coparcenary Property:

According to Madras High Court a coparcener can renounce his share in the coparcenary property in favour of all or any of the coparceners. But the Allahabad and Bombay High Courts have held the view that renunciation must be in favour of all the other coparceners. Later on the Madras High Court in Sarthamal v. Sivlal and others, observed that when renunciation of one’s share in coparcenary property is made by a coparcener, it would devolve on all the other coparceners. Where a son is born to him after the act of renunciation of his share, such son would lose his right to claiming partition in the family.

(11) Right to Survivorship:

The undivided share of a coparcener in coparcenary property after his death devolves by survivorship upon the surviving coparceners not by succession upon his heirs.

According to Mitakshara law every coparcener’s interest in the coparcenary property arises on his birth, and that right carries with it the right to be maintained out of those properties suitably to the status of the family so long the family is joint and to have partition and separate possession of his share, should he make a demand for it. The Hindu law makes no distinction between a major coparcener and a minor coparcener so far as their rights to joint properties are concerned.

The right to survivorship accrues by birth and on the death of a coparcener his interest in the coparcenary property devolves by survivorship upon the remaining coparceners. No coparcener has any separate interest in the undivided coparcenary property. On account of this fact only Mayne had observed that there is no such thing as succession to property so called in an undivided Hindu family.

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