The following are the characteristic features of a Hindu coparcenary:
(i) Formation:
(This has already been discussed above.)
(ii) Creature of law:
A Hindu coparcenary is a pure creature of law. It cannot be created by an act of parties, except in the case of an adoption, whereby a stranger is introduced into the family.
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ADVERTISEMENTS:
Thus, if a joint family consists of X and his deceased brother’s wife, W, and W adopts a son, such a son will become a coparcener with X.
(iii) Exclusion of females:
Before the 2005 Amendment, no female could be a coparcener, although she could be a member of a joint Hindu family. Even a wife who was entitled to be maintained out of her husband’s property (and had, to that extent, an interest in his property) was not her husband’s coparcener.
(iv) Extinction when complete:
A coparcenary cannot be said to be extinct till the death of the last surviving coparcener. Thus, as long as there is even a single coparcener, the coparcenary continues. Even on the death of the sole surviving coparcener, the family cannot be said to be at the end, as long as there is a potential mother, i.e., a female member who can introduce a new male member by birth or by adoption. (Approvier v. Rama Subba, 11 M.L.A. 75)
(v) Unity of ownership and possession:
ADVERTISEMENTS:
The most characteristic feature of a Mitakshara coparcenary is the unity of ownership and possession of joint family property among its coparceners. Both the ownership and possession of the coparcenary property is in the whole body of the coparceners. According to the true notion of a joint family under the Mitakshara Law, no individual member of the undivided family can predicate that he has a definite share (say, one-third or one-fourth) of the joint undivided family. His interest is a fluctuating one, which is liable to be enlarged by deaths in the family, and diminished by births in the family.
It is only on a partition that a member becomes entitled to a definite share of the property. His interest in the coparcenary property before a partition can best be described as his “undivided coparcenary interest”. As observed by the Privy Council in Katama Natchairv. The Rajah of Shivagunga (1893 9 M.I.A. 539), “there is community of interest and unity of possession between all the members of the family”.
(vi) Coparcenary between Collaterals:
Prior to the passing of the Hindu Succession Act in 1956. sons and grandsons whose father was dead, and great-grandsons whose father and grand-father were both dead, succeeded simultaneously as a single heir to the separate or self-acquired property of the deceased with the right of survivorship, and such property would become ancestral property in their hands.
However, after the passing of the said Act, the position is different, because S. 19 of that Act expressly provides that if two or more heirs succeed together to the property of an intestate, they take such property as tenants-in-common, and not as joint tenants. In other words, such heirs take the property without a right of survivorship, and they would not constitute a coparcenary.
(vii) Unity of juristic existence:
ADVERTISEMENTS:
Another salient feature of a Mitakshara coparcenary is unity of juristic existence. The internal constitution of a coparcenary may change on account of births, deaths or adoptions, but as regards outsiders, it is always deemed to be a separate legal entity. It is a distinct juristic person on whose behalf contracts can be entered into and enforced. (Shankar Lai v. Toshan Pal Singh, A.I.R. 1934 All. 533)
In State Bank of India v. Ghamandi Ram (A.I.R. 1969 S.C. 1330) the Supreme Court observed that coparcenary property is held by the coparceners in a quasi-corporate personality.
In the same case, the Court has listed the following as the incidents of a Mitakshara coparcenary:
(i) Firstly, the lineal male descendants of a person upto the third generation acquire, on birth, ownership in the ancestral properties of such a person. (Now, i.e., after the 2005 Amendment, even females acquire such an interest.)
(ii) Secondly, such descendants can, at any time, work out their rights, by asking for a partition.
(iii) Thirdly, till such a partition, each member has got ownership extending over the entire property, jointly with the other coparceners.
(iv) Fourthly, as a result of such co-ownership, the possession and enjoyment of the properties is common.
(v) Fifthly, no alienation of the property is possible without the concurrence of the coparceners, unless it is for a necessity.
(vi) Lastly, the interest of a deceased member passes, on his death, to the surviving coparceners.