A Study of Minor Coparceners

 


The rights and the liabilities of the minor coparceners always remains an undermined area of discussion within the Family law. It is somewhat known that with the birth of a minor, he or she holds a right over the ancestral property. However, there are many facets which remain untold in the area of law which dealt with the minor coparcener. In view of these notions, this paper internalises the fundamental principles of laws that deal with the minor coparceners, and it mostly focuses on some controversial areas related to this portion of the law. Moreover, the discussion mainly has taken property and its partition into consideration to determine the dimensions of the contemporary area of law in view of minor coparceners. Also, several miscellaneous ambits of minor coparceners are also taken into consideration like the liabilities of minor coparceners, the position of minor coparcener at the time of reunion, the possibility for a minor to be a Karta et al. in consideration of various case laws.


The preliminary aim of this paper is to comprehend the dimensions of the coparcenary under the Mitakshara law by way of visiting some of the rudimentary principles of the coparcenary. Afterwards, the paper emphases on its main aim, i.e. to internalise and evaluate the prominence of minor coparcener with respect to the property of the joint family. Under such discussion, the paper attempts to lay down the different circumstances where a minor can have the right over coparcenary property and also the scope of conceivable rights and obligations of minors.

 

The domain of the following issue is not easy to cover in an application of its nature. So, this paper is not exhaustive per se due to the inhibition of time and limited handiness of the resources.  Therefore, the existing paper is restricted to the maiden concerns associated with minor coparcener. 


By considering the fact that most of the provisions with regard to the contemporary issue is well settled, this paper has adopted both descriptive as well as analytical way of writing. This paper is primarily based upon the data from secondary sources which encompasses materials like books, journal articles and other internet sources. Moreover, a uniform citation is shadowed throughout this paper. 

 

Introduction of Coparcener

The system of the joint family is an inexorable fragment in the lives of the Hindus, which can be outlined from an avowal that is “a Hindu has no seepage from the concept of the joint family”. A joint family of Hindus embraces the mutual ancestors, and the entire lineal male descendants fit for any generation in consort with the single daughters, wives and widows.[1] Coparcenary is another term which is extensively used in the Hindu law and every so often this term is found to be used interchangeably with that of the Hindu joint family.[2] However, the Mitakshra School of law has demarcated coparcenary as a narrow term whose membership is restrained to four generations of the male descendants which should be instigated from the mutual male ancestor, as per the Classical law.[3]

In a general sense, a coparcener is a person who is proficient at offering a funeral cake to his father. Earlier, only the son, son of a son, son of a son of a son and son of a son of a son of a son were conferred with the rights to have property from the birth as they are the one who could only offer spiritual salvation through funereal rites.[4] Under Classical law, no female can become a coparcener. The senior-most member is known as the last holder of the property and subsequent to him other three generations from the last holder forms a coparcenary.[5] These coparceners have the right over the property from the birth and competent to ask for partition of the joint property.[6] However, the position is changed after the 2005 amendment, and now girls can also become coparceners.[7] Under the coparcenary, all the coparceners retain the unhindered interest and accord of possession over the properties of joint family.

 A Study of Minor Coparceners

Meaning of the Minor Coparcenary

From the moment a child born in a Hindu joint family, he or she becomes entitles the right over the coparcenary property.[8] Those who are minor coparcener becomes the major coparcener only after attaining the age of 18 years. It is a settled presumption that the monetary expenses made for carrying out the family business are a matter of family necessity and that business must be done with the consent of the family, which means that in case of any debt or liability incurred from the ordinary course of the business, it would have an effect on all the coparceners. However, the liability of the family members is limited to the extent of their interests in the family property. So, it is evident that the minor coparcener will be held liable personally in the case where they are the contracting party along with their mangers, or in case of their rectification of the contract which is enforced by their manager. However, the same position is different for the minor coparcener, who cannot be held personally liable until or unless they rectify such contract after attaining the majority. Also, a minor coparcener can validly ask to reopen the partition if it can be established that partition that took place during his minority was prejudicial, unfair and unjust in nature.[9]

Now, in another scenario, if there is a business partition or there is any property which is in joint names and minor coparcener is a party to this transaction, then in that contractual affair minor coparceners is not competent to enter into his or her personal legal contract; however, it can only be possible through his or her legal or natural guardian (Generally it would be a father and, in his absence, mother or in the absence of both, a person who is appointed by the court to make decisions in regard of the affairs of the minor).[10] It is also noteworthy that only in a certain transaction in relation with the disposal of property, i.e. mortgage, transfer of property, gift, exchange, et al. of the whole or any part of any immovable property, the permission of the court will be required.

 

The rights of Minor Coparcners in view of the partition

By outlining the term partition under the Hindu law, one can say that this term designated the segregation of mutual interests. However, under the ambit of Hindu law, the partition is quite far-fetching than a mere detachment of property.[11] Indeed the term partition encompasses the exclusion of the title as well as the detachment of the joint family property. As per the Vijanaesvara, this term condenses the adjustment of varied privileges by way of dissemination in specific portions, which denotes that the partition does not limit to the separation of the property; however, it delineates the individuals’ rights who has earlier claimed the heritage mutually.[12]

Mitakshra Law has not talked about the requirement of an agreement among all the coparceners for undoing the joint status. However, the only requisite is to materialise a severance pay is the unambiguous, explicit and comprehensive sign of exclusion of a member of the joint family from the joint family.[13] It is vital that the member must unambiguously show his intention of enjoying his share in property separately. In the case of Syed Kasam v. Jorawar Singh,[14] the court held that separation of the estate took place by an unambiguous declaration to hold separate property by any of the joint members, even though no real separation took place.[15] Such declaration can be expressed in numerous ways, either by mere conduct or by explicit declaration; for example:

(a) One member may send a notice to the other coparceners, and in such cases, the severance will take place from the date of sending of such communication and not at the date of acceptance as it is found in contract laws.

(b) One member may institute a suit for partition, and it is considered as an express declaration of his or her desire of separation which results in severance status come into being from the date of filing such suit.

Now, in the case of Addagada Raghavamma v. Addagada Chenchamma,[16] the SC held that it is mandatory that the member who is willing separation, must communicate the intention of separation to all the interested parties. Following the above observation, now the question arises: Whether a minor can be considered as an interested party, the domain of the aforementioned decision?

Here, it is imperative to note that in India, there is no distinction between the major and minor coparceners in view of the rights pertaining to the joint family property. The rights of major and minor are more or less identical to each other (the right of ownership, the right to possession, right to alienate, et al.).[17] So, it is evident that the minor coparcener enjoys a right of partition. Moreover, the status of a minor coparcener can be evaluated from the two perspectives. As it is well known that in Hindu Law, a father who is affecting a partition during his lifetime shall be very well binding on his sons, either major or minor. So, the father does not only split the status of joint family among himself and his sons but also he is competent to hold inter se partition among his sons. Hence, there can be two possibilities: firstly, the father can have separation of himself along with his minor child from the joint holders of property and secondly, a father is also competent to sever his minor coparcener from family including him.

Also, in view of a minor coparcener, under the Hindu Law, the existence of minor coparcener does not work as an obstruction for the partition by any adult coparcener.[18] So, any partition agreement which is enforced by the major coparceners are binding upon the minor coparcener except the case where such an agreement, is found to be unfair and, is of such nature if executed, it will become prejudicial to the minor’s interests.[19] However, a minor coparcener can only set aside that agreement after attaining majority. Thus, it seems evident that such position creates adversity for the minor because minor has to wait until he attains majority and has to put up with prejudice during this period of time which is in toto inevitable.


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This topic will be discussed in more details in our next post. 
ThankYou 


[1] Ernst John Trevelyan, Hindu Family Law: As Administered In British India, 224 (1908).

[2] Saimy Eliza Abraham, Short Note on Hindu Joint Family- Mitakshara and dayabhaga, 2(1) International Journal of Law Mangement & Humanities 1, 2 (2018).

[3] S. Gupta, Devolution of Mitakshara Coparcenary Property Under Hindu Succession Act, JSPUI (1982).

[4] Acharya Shuklendra, Hindu Law 601 (2005).

[5] Paras Diwan, Family Law, 383 (9th ed. 2009).

[6] B.M. Gandhi, Family Law , 9, vol. 2, (2013).

[7] Hindu Succession (Amendment) Act, 2005; Sai Reddy v. Narayana Reddy, (1991) 3 SCC 647. 

[8] Mandly Prasad v. Ramcharan Lal (1947) ILR Nag 848.

[9] Shagufta Yasmin, Partition under Hindu Law, Aligarh Muslim University 4.

[10] Hindu Minority and Guardianship Act, 1956, §6; Narayan LaxmanGilankar v. U.K. Kaushik, (1994) 1 HLR 492 (Bom); Sandhya RajanAntapurkar v. State of Maharashtra, (2000) 2 HLR 277 (Bom).

[11] Kalyani (Death) v. Narayana, AIR 1980 SC 1173.

[12] Donald R. Davis, An Indian Philosophy of Law: Vijnanesvara’s epitome of Law, (Jonardon Ganeri ed., 2017).

[13] Kalyani (Death) v. Narayana, AIR 1980 SC 1173; Sridhara Babu.N, Case Law Digest on Partition Cases, 12.

[14] (1923) 25 BOMLR 1.

[15] Kakumanu v.Kakumanu, AIR 1958 SC 1042.

[16] 1964 AIR 136.

[17] Diwan, supra note, at 437.

[18] Poonam Pradhan Sexena & Kusum, Family Law, vol. 2, at 98 (2020).

[19] P.H. Ramaswamy v. R. Kuppa, AIR 1957 Mad 81.

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