INTRODUCTION
Indian society has its base of joint families. Mostly we find a Hindu joint family in the Indian Hindu society. The origin of this can be traced back to the erstwhile patriarchal society which was very much in existence in ancient times, where the head of the family had control over the whole family and all properties. The scenario has not changed much today as well. And coparcenary is a part and parcel of a joint family but it is narrower comprising only male members.
JOINT FAMILY
A joint family consists of all members of a particular family irrespective of gender (unlike coparcener) and also irrespective of generation. It consists of members from all generations of a family ( be 1st generation, 2nd generation, or 3rd generation, and so on). There always need more than one male or female to constitute the Hindu joint family.
An unmarried daughter on marriage ceases to be a part of her father’s joint family and joins her husband’s joint family property as his wife. And if a daughter becomes a widow or is being deserted by her husband and in-laws, thereafter return to her father’s house permanently she again become a member of her father joint family. But her children won’t become members of her father’s joint family and continue being a member of their father’s joint family.
FEATURES OF THE JOINT FAMILY
There exists a tie of Sapinda in the case of a joint family all family members are connected by blood in some way or another. It can comprise any no. of generations in it. Agnatic relationship meaning preference of male over female is one of the dominating features of joint family. Males are preferred over females when it comes to acquiring and disposing of the properties at the core of the family, the senior-most member holds all the properties under his name a joint family is primarily joint by three things, ie, food, worship, and property. The members of the joint family either share the same kitchen or different kitchens under the same house or the worship same god or they have their ancestral rights in ancestral property. We can even say that a joint family is a fluctuating body. It fluctuates because of four factors – birth, death, marriage adoption.[1]
A joint family is the creature of laws. One can’t add members into this system on their whim and fancies. Therefore, a stranger can’t be made a member of the Hindu joint by any other means available like through a contract etc. If a joint family is not bounded by ordinary factors such as food, worship, the property then in that case the court will examine the situation and will decide the case on given facts.
COPARCENARY
Coparcenary is a part and parcel of a joint family but it is narrower comprising only male members. The primary purpose of coparcenary is to determine that group can perform all those funeral rituals for the father and forefather and so on. All descendants i.e. son, son of a son, son of a son of a son, also have a right by birth in the property of the father as they are part of a joint family and also coparcenary system. An illegitimate son of a lineal male descendant will always be a member of the joint family but can never be a part of the coparcenary system.[2]
There must be a common male ancestor for bringing a Hindu joint family into existence but the scenario changes afterwards as that person is not necessary for its continuation. A single person can neither form a joint family nor a coparcenary. A minimum of two male members is required to form and continue any coparcenary. The presence of a senior most male member of the family is must start a coparcenary and that system of coparcenary will be his coparcenary system.
Now a daughter can also be a coparcener under section 6 of the Hindu Succession Amendment Act, 2005. Section 6 of the abovementioned Act[3] was amended in the year 2005 which further allowed that a daughter can also be a coparcener and also a coparcener by birth “in her own right in the same manner as the son”[4]. Coparcenary is a subset within the joint family recognizing only male members. It consists of only up to four degrees of generation. But in the case when all the coparceners die s leaving behind none but only one of them, the surviving coparcener will be known as the sole surviving coparcener.
When any coparcener renounces his religion and converts himself into another faith and religion and profess that particular religion then he will cease to be a member of a joint family and is, therefore, won’t be considered under the coparcenary system. Similarly, when any male person gets married to a non-Hindu female under the Special Marriage Act, 1954, he will cease to be a part of that coparcenary system. But in both such abovementioned situations, his rights in the coparcenary will not be forfeited at any point of till he is alive, and he will be entitled to take all of his share in the property.
COPARCENARY IN CASE OF ADOPTION
In the case where the coparcener is minor, and if he is given in adoption to another family, then in such case his interest in the coparcenary property before his adoption will be taken by the surviving coparcener once he will be adopted by his adoptive family. He moves to the new adoptive family without any property but will acquire an interest there in the coparcenary property of that particular adoptive family and can claim all such rights there from the date he will be adopted as from that date he is deemed to be born in that particular adoptive family. If we compare both the terms, joint family and coparceners, then we can say that joint family is a much bigger family institution and coparceners form part of this with only male members and up to four generations. Therefore, we can say that there can be a joint family without coparceners but there can never be any coparcenary institution without the existence of the joint family. In the case of a joint family, members can be added by birth, adoption, or even by marriage to lineal male descendants of any of them. Whereas in the case of coparcenary, a member can only be added by birth, or by a valid adoption and never by marriage or any other way. Therefore, all coparceners are always related to each other either by blood relation or adoption and no person can even be a part of the coparcenary system by marriage. When it comes to the right to claim the property in a joint family, all members do not enjoy the same status and all cannot claim for everything, some get the right to reside in the family house, while some may have a right to seek partition and have an interest in the ancestral property. Only coparceners get the right to claim in coparcenary property.
In Kamalakanta Mohapatra v. Pratap Chandra Mohapatra[5], the court observed, “a joint family stands clearly distinguished from a coparcenary and if a joint family is a genus, coparcenary is the species. No female could be a coparcener under Mitakshara and therefore a gift of joint family property cannot be held to be void at the instance of the married daughter who was not a coparcener of the relevant time”.
CONCLUSION
A joint family consists of all members of a particular family irrespective of gender and generation. It consists of members from all generations of a family. There always exists a tie of Sapinda in the case of a joint family and cannot be created by law, all family members are connected by blood in some way or another. It can comprise any no. of generations in it. Coparcenary is a part of a joint family but it is narrower and it comprises only male members. The primary purpose of coparcenary is to determine that group can perform all those funeral rituals whereas this is not the case in the joint family.
Author(s) Name: Aman Jaisawal (Chanakya National Law University, Patna)
References:
[1] Dr. Paras Diwan, Family Law (11th edn, Allahabad law Agency 2016).
[2] Ibid.
[3] Hindu Succession Amendment Act 2005, s 6
[4] K Venkataraman,The Hindu,(16 Aug,2020) <https://www.thehindu.com/news/national/the-hindu-explains-what-is-coparcenary-property-in-hindu-law/article32364484.ece> accessed 14th October 2021
[5] [1978] SCC 153.
