RIGHTS OF COPARCENERS

As already stated above, coparceners are the four generations including the common ancestor in unbroken male descent and after the commencement of Hindu Succession (Amendment) Act, 2005, even a daughter of a coparcener may become a coparcener in her own right in the same manner as the son. The following are the rights of a coparcener in the coparcenary :—

1.     Right of common possession and common enjoyment : There is community of interest and unity of possession between all the coparceners. No one is entitled to any special interest in coparcenary property nor is any one entitled to exclusive possession of any part of it.

2.     Community of interest and right to savings : No coparcener has got a defined share in coparcenary property or income thereof and as long as family in undivided, he cannot predicate that he has certain share in the family property. The entire income must be brought to the common purse and used by all members of undivided family.

3.     Right to joint possession : Each coparcener is entitled to joint possession and enjoyment of the family property and if he is prevented by other coparcener from doing so, he is entitled to an injunction restraining that other coparcener from disturbing his possession and enjoyment [Anant v. Gopal, 11 Bom 269].

4.     Right to enforce partition : Every coparcener, whether major or minor, is entitled to call for the partition of his share against his father, brother or grandfather irrespective of whether the other coparceners agree to become divided or not.

5.     Right to restrain unauthorized act : A coparcener may restrain any unauthorized act (for example, erection of wall or building etc.) of other coparceners in respect of coparcenary property if such act interferes in joint enjoyment and causes substantial injury to the property or rights of other coparceners.

6.     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.

7.     Right of alienation : A coparcener may alienate his undivided interest in the coparcenary by gift, sale or mortgage with the consent of other coparceners. However, in Bombay, Madras and Madhya Pradesh, no such consent is required.

8.     Right to set aside alienations : Every coparcener has a right to set aside alienation made by the father, manager or any other coparcener beyond his authority which includes alienation without legal necessity or illegal transactions without any benefit to estate.

9.     Right to maintenance : A coparcener’s wife and children are entitled to be maintained out of the coparcenary funds and the members of a joint Hindu family are under a legal obligation to maintain all the members of the joint Hindu family.

10.    Right to renounce his interest : A coparcener according to Madras High Court, can renounce his interest in the coparcenary property in favour of all or any of the coparceners. However, the Bombay and Allahabad High Court are of the view that renunciation must be in favour of all the coparceners.

Thus, under Mitakshara law, the right of coparcener to share in the coparcenary property arises by birth and that right carries with it right to be maintained out of those properties and to have partition of his share.

Author & Former Judge

Comment (1)


Durugappa

Super sir

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