Unrestricted Alienation Of Coparcenary Property By Karta In Mitakshara Law

Dr. Pooja Agrawal, Mangalayatan University, Jabalpur

Mitakshara School of Law:

The concept of Coparcenary Property in Hindu Law is governed by two major Schools of law: Mitakshara and Dayabhaga School.1 As the title suggests, this paper focusses only on the Mitakshara School. The reason for this is that Dayabhaga School and its norms are not widely practised and therefore are not of as great an interest as Mitakshara School and its norms are.

Hindu Coparcenary:

Under Mitakshara Coparcenary norms, rights in the joint Hindu family property are acquired by a coparcener by birth. The right to property passes by survivorship to the other members of the family. A Hindu coparcenary is a much narrower body than a Hindu Joint family. It includes only those persons who acquire by birth an interest in the joint or coparcenary property, these being sons, grandsons and great-grandsons of the holder of the joint property for the time being.2 However, after the passing of the Hindu Succession (Amendment) Act of 2005, this coparcenary has been expanded to include the daughter of a coparcener as a coparcener with rights equal to those of her male counterparts.

The estate of every Hindu family is presumed to be joint. However, this presumption of joint- ness is stronger in case of a joint family consisting of a father and his children or brothers and sisters together, than in the case of cousins or distant relatives, etc.4 A Hindu joint family must have joint property to form a coparcenary.