This article explains and answers the following questions :-
i) What is a Joint Hindu Family/Hindu Undivided Family as per the law ?
ii) The Joint Hindu Family Property ? who all have a right ?
iii) What is a Coparcenary ? and who all are Coparceners ?
iv) What do we mean by daughters being coparceners as well ?
v) The rights and obligations of coparceners ? Can a coparcenor sell/gift his interest in ancestral properties ?
vi) Who can seek a partition ?
vii) What is the difference between self acquired & ancestral properties ?
vi) Who is a karta ? What are his rights & obligations ?
Concept of Joint Hindu Family or Hindu Undivided Family (HUF – A Tax term)
A Joint Hindu Family is the normal condition of Hindu Society, or atleast it was until the last few decades. A joint Hindu family is a group of relatives tied together by ties of kinship & marriage and descended from a common ancestor. It includes children, children’s children down the line, spouses. A joint Hindu Family is normally joint in worship/kitchen/business. Even daughter in laws/widowed daughters who has returned back to their parental side are part of a hindu joint family. A joint family may encompass countless generations.
A joint family is headed by a karta who is normally the eldest living male member of the family. Karta has some peculiar rights and obligations under traditional Hindu Law, he has the power and duty of superintendence of how the joint family is run, who is getting what ?, how the members are being maintained ? He is also entitled to dispose off the property in times of dire need/necessity. After 2005 amendments by which women have been given equal proprietary rights in ancestral property even women can be Kartas.
Within the joint family there is a narrower body called the Coparcenory. This includes the eldest male member + 3 generations. For eg : Son – Father – Grandfather – Great Grandfather. This special group of people are called coparcenors and have a definitive right in ancestral property right since the moment of their conception. Earlier only a Son/Son’s son/Son’s son’s son were coparcenors – now daughters are equally coparcenors after 2005. They can get their share culled out by filing a suit for partition at any time. A coparcenor’s interest is not fixed it fluctuates by birth and deaths in the family.
Ancestral & Self Acquired properties.
A property is ancestral when acquired through inheritance from ancestors, this property is always shared by members of a coparcenary equally. On the other hand property is self acquired if it is earned by own efforts/learning or other human endeavour. In the latter – the person acquiring is the sole owner and nobody exercises any right on the same during his lifetime.
Any coparcenor can at anytime seek a partition of his share. The continuing coparcenors can seek to buy out the share of coparcenor expressing his intention to move out by exercising the right of ‘pre-emption’.
Can a Coparcenor sell/gift/dispose off his right in ancestral/coparcenory property ?
Yes – a coparcenor can sell/gift away his interest to another coparcenor or even a third party. However a third parties right to take possession of property alongwith rest of coparcenory is limited. The family can buy the third party out in order to maintain integrity of the house and to prevent a stranger from getting in with the family. This right is given by Transfer of Property Act as well as the Partition Act.
Can a Karta dispose of coparcenory property without consent of the family/coparcenory ?
Yes in cases of legal necessity/benefit of estate the karta can alienate joint family property. However such an alienation can be challenged by the continuing coparcenors as not being for legal necessity or benefit of estate within 12 years of knowledge of sale/gift.
* Author of this column Bharat Chugh is a Delhi Based Supreme Court Advocate.