Relinquishment of Coparcenary Rights to property

Nov 19, 2020

In a joint Hindu Family (HUF), there is a concept of joint possession of ancestral property or coparcenary. HUFs are categorized into two- Dayabhaga and Mitakshara. The former allows even the female members of the family to be concepts, but the latter insists on only male members being coparceners. Coparcenary is a much narrower concept than a joint family. It commences with a common ancestor and includes a holder of the joint property along with the descendants in his line who are not removed from him by more than three degrees. The male members of the family become coparceners at birth, but females don't. However, under Section 6 of the Hindu Succession (Amendment) Act 2005, a HUF governed by the Mitakshara law shall allow even daughters to become coparceners at birth and have the same rights to coparcenary as the son. The coparceners have collective ownership of the coparcenary property. Each coparcener has an antecedent title to the property, but community interest and unity of possession are the key features of a coparcenary. All coparceners have a right to possess, enjoy and alienate their share of the property. 

When a coparcener chooses to alienate his share in the property, he is essentially walking away from the joint family by giving up his share in the ancestral property. This is not the same as the partition of a joint family. When a coparcener relinquishes his share, it only means that he is separating himself from the family, thereby becoming a separate entity. Here, the decision is solely his, and the family usually opposes this action. In the case of partition, however, the family mutually decides to split up. Once this decision is made, the coparceners get to know what their share in the property is. Then, all the coparceners take their share, and the HUF effectively splits up. After a partition, the people are no longer coparceners, but individual entities, and the property they now owned is individual and not shared property. Here, the concept of Right to Inherit by Survivorship is terminated, meaning that if a coparcener dies post-partition, the heirs stated in his will shall be allowed to inherit the property and they will be given precedence over the coparceners under Doctrine of Survivorship. Joint tenancy is therefore effectively replaced by tenancy in common. 

According to Section 8 of the Hindu Succession Act 1956, the mere inheritance of ancestral property does not make it HUF property. Rather, the inherited property is considered as self-acquired property, thereby enabling the owner to waive off or relinquish his rights to the property as he pleases. Since, before the 2005 amendment, only males were allowed to be coparceners, the property would pass on to their heirs for the subsequent three generations. Therefore, they were not allowed to relinquish their share of the property as this would affect the claims of their legal heirs. Treaties under Hindu Law don’t follow the concept of making a will; however, courts have recognized this power over time. A Hindu could bequeath his self-acquired or inherited property even before the enactment of the Hindu Succession Act. Even as a member of a joint family, a coparcener can possess an individual property which he is allowed to bequeath, gift or relinquish in favour of anyone he chooses. In a joint family, however, as long as the property is joint, the share of each coparcener is called a property interest. This also means that as long as the family remains joint, no member can predict his share of the property. V. Kalyanaswamy(D) by Lrs. & Ors. v. L. Bakthavatsalam (D) by Lrs. & Ors. Established thatIn the case of alienation of the property by a Hindu, even if it is of a specific property belonging to the joint property, it would be dealt with on an equitable basis, should the alienee bring an action to enforce the same in a properly constituted Suit. The sale of such a right even over specific immovable property by a coparcener in a Mitakshara Hindu Joint Family does take effect in law where it is permitted, and it would not be a case of a void transaction." The court has further recognized inter-Vivos alienation which is possible only when the coparcener is alive. 

“A coparcener may renounce his interest in the coparcenary property in favour of the other coparceners as a body but not in favour of one or more of them. If he renounces in favour of one or more of them the renunciation enures for the benefit of all other coparceners and not for the sole benefit of the coparcener or coparceners in whose favour the renunciation is made.” Chella Subbanna v. Chella Bala Subba Reddy Laid down that relinquishment by one coparcener of his share in the family property in favour of other coparceners does not amount to alienation, but rather a mere extinction of his interest in favour of others. He, however, is not entitled to give his share in favour of another coparcener. In Anjaneyulu v. Ramayya, it was held that "The relinquishment of a share by one of the coparceners in favour of the other members does not alter the status of the joint family. The release or alone separates himself from the family while others continue as members of an undivided family."

In light of the several judgements and facts, we can conclude that the relinquishment of share in the property by a coparcener doesn't require the adjustment of diverse rights or division of wealth in substantial portions. It is only the extinction of his rights to family property and his separation from the family. This means that the relinquishment of one coparcener’s interest doesn’t result in a partition to the joint family wealth. His renunciation merely extinguishes his interest in the estate but doesn’t affect the status of the remaining coparceners’ share in the family property.