Q1: Coparcenary
Introduction:
In Hindu law, there is a presumption that every family is a joint Hindu family. The males in such a join family, up to 4 generations from a common make ancestor are known as Coparceners. They acquire a right by birth, in the joint Hindu family property. This group of males is known as Coparcenary.
Concept of Hindu Coparcenary:
The concept of Hindu coparcenary is the property inherited by a Hindu from his grand father or father’s ancestral property. The coparceners are entitled to get right by birth. Father grand son and great grand son together constitute coparcenary because they have common ownership in the ancestral property. As is evident, it includes only those male persons, who acquire an interest by birth in the joint property. It does not contain any females. Hence it is to be noted that no coparcenary can commence without a common male ancestor.
In case of Hindu coparcenary, the property of a male Hindu can be divided into two parts
- Self-acquired or separate property
The self-acquired property is his separate property and independent property. It does not constitute as coparcenary property
- Ancestral or coparcenary property
The property inherited by a Hindu from his father, grandfather, great grandfather is ancestral. The gains of earning by way of educational qualification obtained by a member maintained out of joint family funds was also originally considered as part of coparcenary property. However, it is now well settled that it does not constitute coparcenary property by virtue of the Hindu Gains of Learning Act, 1930.
The ancestral property may be categorized into the following heads
- Property inherited from paternal ancestor
- Property inherited from maternal grandfather
- Property inherited from collaterals (descending from same ancestor)
- Share allotted in partition
Differences between Joint Hindu Family and Coparcenary:
| Joint Hindu Family | Coparcenary |
| 1. The joint family of Hindu law is as institution | 1. The coparcenary is within the joint family. The coparceners are the owners of the joint family property |
| 2. A joint family is unlimited both as to the number of persons and the remoteness | 2. A coparcenary is thrown open to only certain members of the joint family. A coparcenary is limited among those males of the family who are within the four degrees, inclusive of the ancestors or by the head of the family for the time being |
| 3. A joint family may continue even after his death, consisting of females only. | 3. A coparcenary is confined to males only and will come to an end with the death of the last coparcenary of the sole surviving coparcener. |
| 4. Every joint family is not a coparcenary. | 4. Every coparcenary is a joint family. |
| 5. A joint family consists of all persons lineally descended from a common ancestor and their wives and unmarried daughters. | 5. It includes only those persons who acquired interest by birth. |
Q6: Agnates
Introduction:
As per the Hindu Succession Act, 1956, where a Hindu male dies intestate his property devolves upon his heirs of Class I mentioned in the schedule to the Act. If there is no Class I successor, then the property devolves upon the Class II heirs of the deceased. If there is no Class II heir, then the property devolves upon the agnates and cognates among whom agnates are preferred over the cognates.
Definition of Agnates:
Agnates is a relation, descended from the same male ancestor as another specified or implied person, especially through the male line. There must be a male in the start of each line of relation. Hence, it will be held as Agnates. It has been held that being related by blood does not mean being related by birth. Hence ‘agnate’ also includes relations by marriage. Therefore, a father’s brother’s widow is an agnate of the deceased and entitled to his property. Similarly, a father’s brother’s daughter would be an agnate.
For Example: Son, Grandson, Great Grandson, Granddaughter, Grandmother.
Order of succession among agnates and cognates:
In case of non-availability of Class I and Class II heirs, the property of the deceased devolves upon his agnates and if there are no agnates, upon his cognates. Therefore, when agnates are present, cognates would not get any share in the property of the deceased. However, if more than one agnates or cognates are present, then the order of succession among them is governed by the provisions of section 12 of The Hindu Succession Act, 1956. Sections 12 provides as under:
12.Order of succession among agnates and cognates.
The order of succession among agnates or cognates, as the case may be, shall be determined in accordance with the rules of preference laid down hereunder:-
Rule 1.-Of two heirs, the one who has fewer or no degrees of ascent is preferred.
Rule 2.-Where the number of degrees of ascent is the same or none, that heir is preferred who has fewer or no degrees of descent.
Rule 3.-Where neither heir is entitled to be preferred to the other under Rule 1 or Rule 2, they take simultaneously.
Q9: Karta
Introduction:
Under the Hindu law, the manager of ta joint family is called as the Karta. Generally, the property belonging to a joint family is managed by the father or another senior male member of the family. However, a minor member of the family cannot act as the Karta of the family. When all the members of the joint family are minors, the court may appoint a guardian for the whole or the joint family property.
Position of Karta under Hindu law:
The position of Karta in a joint Hindu family is sui-generis. His position is so important and unique that there is no office or institution in any other system of the world which is comparable with it. It is not relationship such as that Karta is the agent of the other members in the family to make them liable as Principal.
In the case of Annamalai Chetty Vs Murugesa Chetty [(1903) ILR 26 Mad 544 at pg. 545 (PC)], the Privy Council held that, the relation of the Karta with the members of the family is analogous to that existing between a trustee and beneficiary.
There can be more than one Karta also. A Karta is not to be guided by the quantum of the shares of the individual members, but by their actual needs, as conceived by him. After the death of the father, it is passed to the senior-most male member.
In Kunjipokkarukutty Vs A Ravunni [AIR 1973 Ker 192], it was noted that in the absence of the father in the family, it is the doyen, i.e., the most senior member of the family, who is concluded to be the Karta.
Powers of Karta:
Two cases decided by the Privy Council are as follows:
- Hunoonanpersaud Panday Vs Mussumat Babooee Munraj Koonweree [(1856) 6 Moore’s IA 393]
- Brij Narain Vs Mangal Prasad [(1923) LR 52 IA 129]
In the case of Hunoonanpersaud Panday Vs Mussumat Babooee Munraj Koonweree [(1856) 6 Moore’s IA 393], the Privy Council has explained the role of Karta, in relation to Hindu family property in respect of his qualifications, position, powers, duties and liabilities.
In Union of India Vs Shree Ram Bohr [AIR 1965 SC 1531], it was held that the Karta of the joint Hindu family is certainly a manager of the joint family and undoubtedly possess powers which the ordinary manager does not possess. The Karta therefore cannot just be equated out with the manager.
List of Powers of Karta:
- Power over the income and expenditure of the family
- Power of alienation of joint family property (coparcenary) for legal, necessity or for the benefit of the estate.
- Power to contract and acknowledge debts
- Power to start a new business
- Power to give a valid discharge
- Power to refer disputes to arbitration
- Power to represent the joint family in suits and court proceedings
- Power to compromise
Q10: Dayabhaga
Introduction:
The expression ‘school of law’ is applied to different legal opinions prevalent in different parts of India. Mitakshara is one of the schools of law in India. It is a supreme Authority in India except in West Bengal and Assam. The other major school of law being the Dayabhaga, is considered a superior authority in West Bengal and Assam.
Origins of Dayabhaga:
The Mitakshara was written by Vigneswara, is a running commentary on the Smritis of Yagnavalka, whereas Dayabhaga is written by Jimutavahana. There are no subdivisions under Dayabhaga school of law
Salient Features of Dayabhaga School of law:
- The Dayabhaga school is actually a digest of all the codes
- It is considered to be the reformed school of law
- The dominating factor is the principle of religious efficiency or spiritual benefit
- Father is the absolute owner of the property in his lifetime. Son has no right under Dayabhaga
- It does not recognize the birthrights of son over the ancestral property
- It recognizes the rights of a widow to succeed after her husband and to enforce partition against the husband’s brother on her own account
- On the death of the father, his sons take the father’s property as quasi-severally as partitioned succession whereby each brother is free to alienate his share
- A member of a joint family may sell or give away his share even when undivided
Q12: Mitakshara
Introduction:
The expression ‘school of law’ is applied to different legal opinions prevalent in different parts of India. Mitakshara is one of the schools of law in India. It is a supreme Authority in India except in West Bengal and Assam. The other major school of law being the Dayabhaga, is considered a superior authority in West Bengal and Assam.
Origins of Mitakshara:
The Mitakshara was written by Vigneswara, is a running commentary on the Smritis of Yagnavalka, where as Dayabhaga is written by Jimutavahana.
Subdivisions of Mitakshara School of law:
- The Benares school
- The Maharashtra school
- The Mithila school
- The Dravida school
The subdivision was carried even further to the extent of the Dravida school into a set of a Tamil, a Karnataka and an Andhra Pradesh schools.
Salient Features of Mitakshara School of law:
- It is an orthodox school or law
- The heir-ship is founded on blood relationship or propinquity
- It recognizes the right of the sons to control and challenge unauthorized alienation of ancestral property by the father.
- It established the birthright of the son over ancestral property held by the father
- A woman cannot be a member of a Mitakshara coparcenary
- In a Mitakshara coparcenary, no coparcenary has a defined or ascertained share in the property. Upon the death of the coparcener, his interest passed by survivor-ship to the coparcener.
- Members of joint family cannot dispose of their shares until it is undivided under Mitakshara
