Property under Mitakshara Law: Separate and Coparcenary

In one line

Property is either coparcenary property, in which every coparcener has an interest by birth, or a member's separate property, which is his alone; and the whole of the module is about telling them apart.

The two classes

Mitakshara law divides all the property a member of a joint family may hold into two.

Coparcenary property, also called joint family property. Every coparcener takes an interest in it by birth. No coparcener owns a defined share. It is subject to partition, to the karta's power of management and alienation, and, before 2005, to survivorship.

Separate property, also called self-acquired property. It belongs to one member absolutely. He may sell it, gift it or will it away as he pleases; no coparcener may object; and on his death it passes by succession, not by survivorship.

The whole of the rest of this chapter is the list of what falls into each.

What is coparcenary property

1. Ancestral property

This is the core case and it is the one MU asks about.

Ancestral property means property inherited by a Hindu male from his father, father's father or father's father's father. In his hands it is joint family property as regards his own sons, grandsons and great-grandsons, who take an interest in it by birth.

Three traps, and they are all in that sentence.

"Ancestral" is a term of art, not ordinary English. Property inherited from a maternal grandfather, from a brother, from an uncle, or from any collateral, is not ancestral property. It is the separate property of the person who inherits it, and his sons take no interest in it by birth. Only the three direct male ancestors count.

It is ancestral as regards the descendants, not as regards the holder. A man who inherits from his father holds it as his own vis-a-vis his brothers if they have separated, but as joint family property vis-a-vis his own sons. The same property can be self-acquired in one relation and ancestral in another.

The character passes to four degrees only. The son, grandson and great-grandson take by birth. Beyond that the reckoning restarts.

This is also the distinction between apratibandha daya and sapratibandha daya, unobstructed and obstructed heritage, described in [The Sources and the Schools of Hindu Law]. Property from the three direct male ancestors is unobstructed: the right arises at birth. Property from anyone else is obstructed: the right arises only on the owner's death.

2. Property acquired by the joint family

Property acquired with joint family funds, or by the joint labour of the members, or in the name of one member out of the family nucleus, is coparcenary property whatever the deed says. This is where the presumption in [The Mitakshara Joint Family] does its work: once a sufficient nucleus is proved, the burden lies on the member claiming the property as his own.