Who are coparceners?
Coparceners are those who have a right by birth in the joint family property. In the ancestral property of a male his son, grandson and great-grandson have a right by birth. Suppose A has two sons Â and Ñ and a daughter, D. B1 and B2 are the sons of B. C1 and C2 are sons of Ñ. B3 and B4 are the sons of B1 and B5 is the son of B2, C3 and C4 are the daughters of C1 and C2. In A’s property, his sons Â and C, grandsons B1, B2, C1 and C2 and great grandsons B3 and B4 have a right by birth. On the death of one coparcener, his right passes to the others by survivorship. A’s wife A1 the daughter D until her marriage, wives of sons and grandsons and great- grand-sons are all members of the joint family but are not coparceners. They have no right by birth and no right of survivorship.
A text of Yajnavalkya says: “In land, corrody or wealth received from the grandfather, the ownership of the father and son is equal”. This means that the son can enforce a partition in ancestral property, that is, property descending to the father from his male ancestors. Such property becomes coparcenary property in the hands of the sons.
That is, their sons, grandsons and great- grandsons can claim a share in it by birth. The share obtained by enforcing a partition would also be coparcenary property. The self-acquired property of the coparceners may be kept apart by them or may be blended by them with the coparcenary property.
When it is thrown into the common hotchpots it is blended with it and becomes coparcenary property. Property purchased by a female with her funds would not without any other evidence divest the owner of a right in property so as to give it the character of joint family property. Lakshmi Ammal v. Muthu Gounder, AIR 2003 Mad 25.
According to Yajnavalkya whatever is acquired by the coparcener himself without detriment to the father’s estate, eg. a present from a friend or gift at nuptials is his exclusive property. By the Hindu Gains of Learning Act (30 of 1930) acquisitions made by learning are self-acquisitions. Learning means education whether elementary, technical, scientific, special or general and training of every kind which is usually intended to enable a person to pursue any trade, industry, profession or occupation in life.
The senior most coparcener is the Manager. The Manager is in charge of coparcenary property. He is not a mere agent of the other members nor is he a trustee in the strict sense. He looks after the family property and spends the income on behalf of the family. According to a text of Yajnavalkya the manager can alienate the family property for family necessity or for family benefit.
A father-Manager has larger powers. He can alienate the coparcenary property for the discharge of his personal debts, which are antecedent to the alienation and are not tainted with illegality or immorality. Suppose the father borrows money, though not for necessity or benefit of the family, on a promissory note and then ‘ mortgages the property to payoff the debt.
The mortgage is binding. But if the father borrows money for his own purpose on a mortgage in the first instance, the mortgage is not valid as there is no antecedent debt to support it. The manager, whether he is the father or not is not bound to economise or to maintain accounts. If the coparceners are dissatisfied, their remedy is to ask for partition.
(1) Of assets:
The coparcenary property existing at the time when partition is demanded is divided among the coparceners. It is possible for one coparcener to take his share and separate himself leaving the coparcenary intact so far as the others are concerned.
Suppose B2 (See figure 2) wants a partition of his share. The share is determined thus: Each son of A constitutes a branch of the joint family and each existing branch gets a share. Since A has two sons/the branch of Â gets 1/3 (one-third) share. Â and his sons B1 and B2 have equal shares in it. The sub-branch of B1 gets 1/3 x 1/3 = 1/9. In this the sharers are B1, B3 and B4. They take equally per capita (per) head, B3 gets 1/3 of 1/9 = l/27th of the coparcenary property. Suppose B1 is dead.
Even then his branch will get 1/9th of the coparcenary property which will be divided equally between B3 and B4. B3 and B4 have the right of representation and they take what their father would have taken had he been alive. The points to note are: (a) The division is stripital (per stripes) according to branches, (b) If one coparcener is dead, his sons, grandsons, and great grandsons can have the right of representation and they take what the deceased would have taken at the partition, (c) The members of each class (ultimate sub-branch to which the claimant belongs) take per capita as regards each other.
(2) Of liabilities:
On a partition provision should be made for meeting the liabilities of the family, eg., debts, maintenance and marriage expenses of female members, etc. The creditors of the joint family are not affected by the partition. They can enforce their claims against the joint family property in the hands of the separated coparceners even after partition.
Pre-partition debts: Pious Obligation:
The sons are under a pious obligation to discharge their father’s debts even in his life-time provided the debts are not tainted with illegality or immorality. The obligation can be enforced against their interest in the joint family property or the share of joint family property allotted to them at a partition but not personally against them. For the post-partition debts of the father, the sons are not liable.
On the death of the father, if his separate property is inherited by the sons, they have to pay the debts, pre-partition or post partition, even if tainted by illegality and immorality, to the extent of the assets inherited.
Even if no property is inherited, they have to pay the pre-partition debts not tainted by illegality and immorality, to the extent of the coparcenary property obtained by survivorship or at a partition. This is liability of the sons extends also to the grandsons and great- grandsons.