What are the Characteristic Features of Mitakshara Coparcenary?

Characteristic features of Mitakshara
Coparcenary are as follows:
In State Bank of India v. Ghamandi
Ram, the Supreme Court observed: “A
coparcenary under the Mitakshara
School is a creation of law and cannot
arise by act of parties except in so far
that on adoption the adopted son
becomes a coparcener with his adoptive
father as regards ancestral properties of
the latter. The incidents of
coparcenership under Mitakshara law
are:
(i) First, the lineal male descendants of
a person upto third generation, acquire
on birth ownership in the ancestral
properties of such person,
(ii) Secondly, that such descendants can
at any time work out their rights by
asking for partition;
(iii) Thirdly, that till partition, each
member has got ownership extending
over the entire property conjointly with
the rest;
(iv) Fourthly, that as a result of such
co-ownership the possession and
enjoyment of properties is common;
(v) Fifthly, no alienation of the property
is possible unless it be necessity,
without the concurrence of the
coparceners;
(vi) Sixthly, that the interest of the
deceased member lapses on his death to
the survivors;”
The following are the characteristic
features of the Mitakshara coparcenary:
(1) Unity of Ownership:
The essential feature of a Mitakshara
coparcenary property is unity of
ownership, i.e., the ownership of
property is not vested in a single
coparcener. It is vested in whole body of
coparcenary. According to the true
notion of an undivided family governed
by the Mitakshara law, no individual
member of that family whilst it remains
undivided, can predicate, of the joint and
undivided property, that he has a
definite share.
In Thammavenkat Subbamma v.
Thamma Ratamma, the Supreme Court
affirming the above view held that the
essential feature of Mitakshara
coparcenary is unity of ownership and
community of interest. No coparcener
has any definite share in the
coparcenary property although his
undivided share is existent there, which
increases with the death and decreases
with the birth of any coparcener. The
coparcener acquires an interest in
coparcenary property by birth, which is
equal to that of his father.
(2) Indeterminability of Shares:
The interest of a coparcener in the
coparcenary property is a fluctuating
interest which is liable to diminish with
the birth and bound in increase with the
death of any coparcener in the family.
So long the family remains united; no
individual coparcener can predicate that
he has a definite share in the property of
the family.
In Commissioner of Gift-tax v. N.S.
Getty Chettiar, the Court upholding the
above view held that so long the family
remains undivided; no individual
coparcener can claim any specific share
in the joint family property. All the
coparceners are the owners of entire
joint family property. Their shares can
be specified only after the partition is
effected in the joint family. The share of
any coparcener is thus unpredictable
and unspecified before partition.
Recently, in Munni Lal Mahto and others
v. Chandeshwar Malito and others, the
Court upholding the above view held
that if any coparcener of joint Hindu
family transfer the coparcenary property
by way of gift without consent of other
coparceners, it is void, because all the
coparceners are the owners of entire
joint-family property and joint family
continues, and the coparcenary interest
is an indeterminate. It becomes
determinate only when the states of
jointness is broken.
(3) Community of Interest:
There is community of interest in the
coparcenary property. The moment a
person is born in the family, he acquires
an interest in the coparcenary property
in the sense that he has a right of
common enjoyment and common use of
all the properties, because as soon as
he is born as a son, he assumes the
membership of the community.
It also signifies that no coparcener is
entitled to any special interest in the
coparcenery property, nor is he entitled
to exclusive possession of any part of
the property. As it has been rightly
observed by the Privy Council that
“there is community of interest and unity
of possession between all members of
the family.” No coparcener can say with
certainty that he is entitled to one half
or one fourth as it is the essence of
coparcenary property that there is
community of interest and unity of
possession.
The shares of individual coparceners
cannot be defined. All the coparceners
have a right of common enjoyment or
common use of the property. It signifies
two implications: firstly, possession of
one coparcener in the possession of all
coparceners, and secondly, no
coparcener has a right of exclusive
possession of any portion of joint
property.
(4) Exclusion of Females:
In Mitakshara coparcenary no female
can be its members, though they are
members of joint family. Even the wife
who is entitled to maintenance enjoys
only the right to maintenance but she
can never become a coparcener.
Thus a female does not have the right
to demand partition. Since she is not a
coparcener, she cannot become the
Karta of the family. An alienation of the
property of the joint family by her will
not be binding on her sons and
daughters. The alienation of her own
share is not binding upon herself.
It is worthwhile to mention that the
Hindu Women’s Right to Property Act,
1937, conferred a special status on the
widow and made them eligible to inherit
the coparcenary interest along with her
sons, although she took it as a limited
estate. Thus she acquired the status like
that of coparcener entitled to a share,
equal to that of her sons. For example,
A who constitutes a coparcenary with
his two sons, namely, В and C, dies
leaving behind his widow, W, two sons,
В and C. Under the Hindu Woman’s
Right to Property Act, 1937, W inherited
the coparcenary property along with В
and С and would get 1/3 share each.
(5) Devolution by Survivorship:
One of the distinctive features of
coparcenary is that the coparcenary
interest of a coparcener in coparcenary
property on his death does not devolve
on his heirs by succession but on the
other hand it passes by survivorship to
the other coparceners. Thus right by
birth and right of survivorhsip are
necessary incidents of community of
interest and unity of ownership, which
signify joint possession not an exclusive
possession.
(6) Right of Maintenance:
All the members of coparcenary are
entitled to maintenance by birth out of
joint family property. They continue to
enjoy this right so long the coparcenary
subsists. Where any member fails to get
any share on the coparcenary property
even after partition he retains the right
of maintenance.
Some special provisions have to be
made for them at the time of partition.
Female members and other male
members who do not get a share on
partition such as unmarried daughters,
idiots or lunatics, are entitled to
maintenance out of joint family property.
Unmarried daughters have a right to be
married out of joint family funds.
Where a coparcener married under
Special Marriage Act, 1954, he is
separated from coparcenary. He can
form separate coparcenary along with
his male descendants.