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Elibrary datafile kinds and characteristics of the property

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Adv. Potla Sukhavani Rao

There are two types of property under Mitakshara law: unobstructed heritage (joint family property) and obstructed heritage (separate property). A coparcenary is the joint ownership of inherited property within a Hindu joint family, extending up to the fourth generation from a common ancestor. Key features of a coparcenary include members having a birthright to joint family property and shares only being determined after partition. Joint family property can include ancestral property, property received through gifts or partition, or property jointly acquired by coparceners.

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Kinds and characteristics of the property Under Mitakshara law property is classified into two categories: 1. Apartibandha Daya / Unobstructed ted Heritage 2. Sapratibandha Daya/ Obstructed Heritage Unobstructed heritage is the term for the joint family property or ancestral property acquired by son, son’s sonor son’s son’s sonby birth. The rule which is governing its inheritance is the rule of survivorship. Obstructed heritage is the term for the self acquired property or separate property. In this type of the heritage a do not get the right by birth but right is acquired on the death of owner of the property. So it means there are two types of the property i.e. Joint family property/ Copacenary property Separate/ self acquired property Coparcenary and its elements Coparcenary means the joint ownership of inherited property. There are three elements of coparcenary property:  Exist in Hindu Joint Family  Consist of male and female descendants  Extends up to fourth generation including the common ancestor. Coparcenary continues even at the death of the intermediatory generations. Fore.g. A is a common ancestor descending B, C, D,E. B is the sonof A, C is the son of B, D is the son of C and E is the sonof D. In this illustration the Coparcenary is up to D and E the son of D is not included in the coparcenary. In the same case if the B dies the coparcenary starts from the A and ends at D but doesn’t shifts to E as A is living and the coparcenary is only up to Fourth generation.
In the similar situation if A is alive B, C, D dies. Then the coparcenary is only of A again E will not be included in it as it is at 5th generation from the common ancestor i.e. A When A dies then the coparcenaries shifts to next level i.e. E How Coparcenarycomes to an end The coparcenaries come to end by two ways i.e. i. Partition ii. On the death of Sole surviving Coparcener. Similarities betweenJoint family and Coparcenary ï‚· Both are based on Sapinda relations ï‚· Both arises from a common ancestor and continues even after death of common ancestor. ï‚· Both are the creation of Hindu law and not of contract. Dissimilarities betweenJoint family and coparcenary Joint Family Coparcenary 1. Unlimited in number & degree of generation. Exists only up to four generation. 2. Both males and females are the members of All males and only Join Hindu family. daughters are . members Features ofCoparcenary: ï‚· A Coparcener has an interest by birth in Hindu joint Family property. ï‚· Shares of the coparceners are flexible and unspecified before partition. Comm. Of Gift Tax vs. N.S.G.Chelliar AIR 1971 SC 410 All the coparceners are the owners of joint family property and these shares can be ascertained only after partition. ï‚· Unity of ownership ï‚· Community of interest. When a child born in family he/she became entitled to have common interest and use of joint Hindu family. No coparcener can be exclusive owner of common joint family. All coparceners are in possessionof Hindu joint family property.
 Coparcenary is a creation of Hindu law and not creation of an agreement. Bhagwat Dayal vs Rita Devi AIR 1962 SC 287 Whenever there is a reference of word coparcenary, it means that it is created by Hindu law not by Contract under Mitakshara law  Right to Maintenance. The coparceners have the right to maintenance. Chandra v Kanak AIR 1975 Delhiu 175 It was held that Every Coparcenerhas a right to receive maintenance and is entitled to receive marriage expenses from joint family funds. Sources ofjoint family property: 1. Ancestral property Property acquired from father, father’s father or father’s father’s father is ancestral property. Dipo vs. Wassam Singh AIR 1983 SC 846 A Hindu male acquiring any property from his father, father’s father or father’s father’s father is unobstructed heritage and is an ancestral property.  Property inherited from maternal grand father Maktul vs. Maan bhari AIR 1958 SC 1268 Property inherited from maternal grandfather is a separate property thus the son will not have the right in this type of propertyinherited by his father by the maternal grandfather.  Property inherited from any other relation Om Prakash vs Sarbjeet AIR 1995 HP 92 Property inherited from maternal uncle, paternal uncle, issueless brother or sister relinquishing her share in favor of her brother is separate property and the son inheriting person doesn’t have birth right in such property. 2. Other Sources  Property obtained on partition After partition the propertybecomes joint family property on the birth of son.  Property received in gift Gift of self acquired property by father to son. And the gift of joint family property by Karta.  Property jointly acquired by Coparceners The property which is jointly acquired by the coparcener is the joint family property.
Purna vs. Ramchandas AIR 1992 AP 270 There is always a presumption that if any property is acquired by coparcener jointly it shall be joint family property and sonwill have right from the birth in it. ï‚· Property acquired without the aid of ancestral income is not the Joint Hindu Property Bhawan Dyal vs Reoti AIR 1962 SC 287 In this case the supreme court of India held that Property acquired without the aid or help of ancestral nucleus is not joint Hindu property. ï‚· Income by Hereditary profession Laxmi vs. Ishrov AIR 1977 SC 1694 The income generated from the hereditary profession from joint Hindu family professionis JHFP ï‚· Property exchanged for the Hindu Joint family property Gurbachan Singh vs. Puran Singh AIR 1961 SC 1963 Any property exchanged in lieu of joint family property shall becomejoint family property. ï‚· Property thrown into common stock& blending of property constitutes the JFP When a coparcener expresses his intention to treat his separate property as joint family property called throwing into common stock. There are two elements in it that is taken into accounti.e. intention of the coparceners and the conductof the owner. Mallellsppa vs. Malappa AIR 1961 SC 1268 When a coparcener clearly expresses his intention to treat his separate property as JHFP it is throwing into common stock. When a coparcener voluntarily mixes his property with JFP voluntarily surrenders his ownership right and mixes property with JFP is known as Blending of Property. Narayan vs. Chamaraju AIR 1977 SC 1276 When a coparcener physically mixes his separate property with JFP called Blending of property. ï‚· Gains of learnings Gains which may be acquired by members of joint family through education or training. Till 1930 courts made distinction. If any member acquired specialized
training by income of joint family the gains acquired out of training is joint family property. Gokul chand vs. Hukum Chand AIR 1921PC35 If any specialized learning had been acquired with the help of joint family, the income from that training shall be joint family property. If the training is ordinary then the income will be his separate property. Then Gains of Learning ACT 1930 was passed. According to that any income coming from any learning shall be separate property of the member of joint family. Joint family has no control over separate property of member of

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Elibrary datafile kinds and characteristics of the property

  • 1. Kinds and characteristics of the property Under Mitakshara law property is classified into two categories: 1. Apartibandha Daya / Unobstructed ted Heritage 2. Sapratibandha Daya/ Obstructed Heritage Unobstructed heritage is the term for the joint family property or ancestral property acquired by son, son’s sonor son’s son’s sonby birth. The rule which is governing its inheritance is the rule of survivorship. Obstructed heritage is the term for the self acquired property or separate property. In this type of the heritage a do not get the right by birth but right is acquired on the death of owner of the property. So it means there are two types of the property i.e. Joint family property/ Copacenary property Separate/ self acquired property Coparcenary and its elements Coparcenary means the joint ownership of inherited property. There are three elements of coparcenary property: ï‚· Exist in Hindu Joint Family ï‚· Consist of male and female descendants ï‚· Extends up to fourth generation including the common ancestor. Coparcenary continues even at the death of the intermediatory generations. Fore.g. A is a common ancestor descending B, C, D,E. B is the sonof A, C is the son of B, D is the son of C and E is the sonof D. In this illustration the Coparcenary is up to D and E the son of D is not included in the coparcenary. In the same case if the B dies the coparcenary starts from the A and ends at D but doesn’t shifts to E as A is living and the coparcenary is only up to Fourth generation.
  • 2. In the similar situation if A is alive B, C, D dies. Then the coparcenary is only of A again E will not be included in it as it is at 5th generation from the common ancestor i.e. A When A dies then the coparcenaries shifts to next level i.e. E How Coparcenarycomes to an end The coparcenaries come to end by two ways i.e. i. Partition ii. On the death of Sole surviving Coparcener. Similarities betweenJoint family and Coparcenary ï‚· Both are based on Sapinda relations ï‚· Both arises from a common ancestor and continues even after death of common ancestor. ï‚· Both are the creation of Hindu law and not of contract. Dissimilarities betweenJoint family and coparcenary Joint Family Coparcenary 1. Unlimited in number & degree of generation. Exists only up to four generation. 2. Both males and females are the members of All males and only Join Hindu family. daughters are . members Features ofCoparcenary: ï‚· A Coparcener has an interest by birth in Hindu joint Family property. ï‚· Shares of the coparceners are flexible and unspecified before partition. Comm. Of Gift Tax vs. N.S.G.Chelliar AIR 1971 SC 410 All the coparceners are the owners of joint family property and these shares can be ascertained only after partition. ï‚· Unity of ownership ï‚· Community of interest. When a child born in family he/she became entitled to have common interest and use of joint Hindu family. No coparcener can be exclusive owner of common joint family. All coparceners are in possessionof Hindu joint family property.
  • 3. ï‚· Coparcenary is a creation of Hindu law and not creation of an agreement. Bhagwat Dayal vs Rita Devi AIR 1962 SC 287 Whenever there is a reference of word coparcenary, it means that it is created by Hindu law not by Contract under Mitakshara law ï‚· Right to Maintenance. The coparceners have the right to maintenance. Chandra v Kanak AIR 1975 Delhiu 175 It was held that Every Coparcenerhas a right to receive maintenance and is entitled to receive marriage expenses from joint family funds. Sources ofjoint family property: 1. Ancestral property Property acquired from father, father’s father or father’s father’s father is ancestral property. Dipo vs. Wassam Singh AIR 1983 SC 846 A Hindu male acquiring any property from his father, father’s father or father’s father’s father is unobstructed heritage and is an ancestral property. ï‚· Property inherited from maternal grand father Maktul vs. Maan bhari AIR 1958 SC 1268 Property inherited from maternal grandfather is a separate property thus the son will not have the right in this type of propertyinherited by his father by the maternal grandfather. ï‚· Property inherited from any other relation Om Prakash vs Sarbjeet AIR 1995 HP 92 Property inherited from maternal uncle, paternal uncle, issueless brother or sister relinquishing her share in favor of her brother is separate property and the son inheriting person doesn’t have birth right in such property. 2. Other Sources ï‚· Property obtained on partition After partition the propertybecomes joint family property on the birth of son. ï‚· Property received in gift Gift of self acquired property by father to son. And the gift of joint family property by Karta. ï‚· Property jointly acquired by Coparceners The property which is jointly acquired by the coparcener is the joint family property.
  • 4. Purna vs. Ramchandas AIR 1992 AP 270 There is always a presumption that if any property is acquired by coparcener jointly it shall be joint family property and sonwill have right from the birth in it. ï‚· Property acquired without the aid of ancestral income is not the Joint Hindu Property Bhawan Dyal vs Reoti AIR 1962 SC 287 In this case the supreme court of India held that Property acquired without the aid or help of ancestral nucleus is not joint Hindu property. ï‚· Income by Hereditary profession Laxmi vs. Ishrov AIR 1977 SC 1694 The income generated from the hereditary profession from joint Hindu family professionis JHFP ï‚· Property exchanged for the Hindu Joint family property Gurbachan Singh vs. Puran Singh AIR 1961 SC 1963 Any property exchanged in lieu of joint family property shall becomejoint family property. ï‚· Property thrown into common stock& blending of property constitutes the JFP When a coparcener expresses his intention to treat his separate property as joint family property called throwing into common stock. There are two elements in it that is taken into accounti.e. intention of the coparceners and the conductof the owner. Mallellsppa vs. Malappa AIR 1961 SC 1268 When a coparcener clearly expresses his intention to treat his separate property as JHFP it is throwing into common stock. When a coparcener voluntarily mixes his property with JFP voluntarily surrenders his ownership right and mixes property with JFP is known as Blending of Property. Narayan vs. Chamaraju AIR 1977 SC 1276 When a coparcener physically mixes his separate property with JFP called Blending of property. ï‚· Gains of learnings Gains which may be acquired by members of joint family through education or training. Till 1930 courts made distinction. If any member acquired specialized
  • 5. training by income of joint family the gains acquired out of training is joint family property. Gokul chand vs. Hukum Chand AIR 1921PC35 If any specialized learning had been acquired with the help of joint family, the income from that training shall be joint family property. If the training is ordinary then the income will be his separate property. Then Gains of Learning ACT 1930 was passed. According to that any income coming from any learning shall be separate property of the member of joint family. Joint family has no control over separate property of member of