Difference between ‘Coparcenary’ and ‘Joint Family’ -
Coparcenary and joint Hindu family are not synonymous to each other. Joint Hindu family signifies a big institution which consists of a common ancestor, his mother, wife, male descendants, their wives, widows and unmarried daughters below to any degree. It is based on the sapinda relationship of the members.
It is a creature of law, not of the act of parties. On the other hand coparcenary is a limited body which includes only those male members who have the right by birth in the ancestral property and therefore, they enjoy the right to demand partition in such property. Thus the coparcenary includes the male descendant’s upto three generations, i.e. sons, son’s son and son’s son’s son. In Surjit Lai v. Commissioner of Income tax the Supreme Court observed:
“A Hindu coparcenary is much narrower body than the joint family. It includes only those persons who acquire by birth an interest in the joint or coparcenary property and these are sons, grandsons and great grandsons of the holder of the joint property for the time being. Since under the Mitakshara law, the right to joint family property by birth is vested in the male issue only, females who come in only as heirs to obstructed heritage, cannot be coparceners. Outside the limits of coparcenary, there is a fringe of persons, males and female, who constitute an undivided or joint family.
There is no limit to number of persons who can compose it nor to their remoteness from the common ancestor and to their relationship with one another. The joint Hindu family is thus a larger body consisting of a group of persons who are united by the time of Sapindaship arising by birth, marriage or adoption. The fundamental principle of Hindu joint family is Sapindaship.”
The joint family differs from the coparcenary on the following points:-
Firstly, the joint family is unlimited both as to the number of persons and remoteness of their descent from the common ancestor whereas coparcenary is open to only certain members of joint Hindu family.
Secondly, a coparcenary is limited to male members of the family who are within the rule of four degrees inclusive of the common ancestor, whereas there is no such limitation in the case of a joint family.
Thirdly, since coparcenary is confined to males only, it comes to an end with the death of the last surviving coparcener, whereas a joint family continues even after his death. It may continue with females only.
Fourthly, though every coparcenary is joint family or part о I one, the converse is not always true, i.e., every joint family is not a coparcenary. The Allahabad High Court upholding the above views observed:
“A Hindu joint family consists of all persons lineally descended from a common ancestor and includes their wives and unmarried daughters but a Hindu coparcenary is much narrower body and includes only those persons who acquire by birth an interest in the joint or coparcenary property those being the sons, grandsons and great grand sons of the holder of the joint property for the time being.”
Fifthly, a joint Hindu family is bigger institution covering in its fold all the male and female members descended from a common ancestor. It includes the unmarried daughters also, whereas a coparcenary is a narrower body. It includes only those persons who acquire by birth an interest in the joint coparcenary property, being the sons, grandsons and great grandsons of the holder of the joint property for the time being.
The illegitimate sons of a coparcener are not the members of a coparcenary, although they are entitled to maintenance. Since they are not coparceners, they do not enjoy the right to demand partition. But after the death of the father such illegitimate sons can claim partition and will be entitled to equal share.
In Hardeo Rai v. Shakuntala Devi, the Court observed that, the distinction between Mitakshara coparcenary property and joint family property, a Mitakshara coparcenary carries a definite concept; it is body of individuals having been created by law unlike a joint family which can be constituted by agreement of the parties.
The Court also held that when intention is expressed to partition and share of each of coparceners becomes clear and once share of a coparcener is determined, it ceases to be coparcenary. Parties in such an event would not possess property as “Joint Tenants” but as tenants in common.