The seven main points of distinction between coparcenary property and separate property may be laid down as follows:
1. Devolution:
On the death of a coparcener, his undivided interest in the joint family property devolves by survivorship, and not by succession, (subject to the provisions of Sections 6 and 30 of the Hindu Succession Act, 1956).
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ADVERTISEMENTS:
The separate property of a coparcener, on the other hand, passes, on his death intestate, to his heirs by succession, and not by survivorship to the remaining coparceners.
2. Nature of interest:
All the coparceners have community of interest and unity of possession in the joint family or coparcenary property. On the other hand, the separate or self-acquired property of a Hindu belongs to him exclusively – even though he may be a member of a joint Hindu family.
As long as the family is undivided, a coparcener cannot predicate that he or she has, at any given time, a given share (say, one-third or one-fourth) in the coparcenary property. His or her share crystallizes only when a partition takes place, and till then, he or she has a fluctuating interest, liable to be enlarged by deaths in the family, and capable of being diminished by births in the family. As separate property belongs exclusively to its owner, the question of predicating shares does not arise in the case of such property.
3. Acquisition of interest by birth:
The children, grandchildren and great-grandchildren of the coparcener acquire an interest in the coparcenary property by birth. But, no other coparcener (not even his own son) acquires any interest by birth, in the separate property of a Hindu.
4. Alienation by will:
ADVERTISEMENTS:
Prior to 1956, no coparcener could dispose of by will, his undivided interest in the coparcenary property, whereas separate property could be freely disposed of by will. But now, S. 30 of the Hindu Succession Act, 1956, enables a Hindu to dispose of such interest under a will.
5. Alienation by gift:
Separate property can be gifted away by the owner, to any extent, and to any person. Thus, if the owner is the father, he can make a gift of his separate property even to a stranger, without the concurrence of his children. Likewise, he can gift it to one child to the exclusion of the other children, and so on. No coparcener can, however, alienate his undivided interest in the coparcenary property by way of gift, without the consent of the other coparceners. The only exception to this rule is that a father may make a gift of a small portion of ancestral property, within certain limits and under certain circumstances, to be discussed later. Even the Hindu Succession Act, 1956, has not made any provision for alienation of coparcener’s undivided interest by gift, as it has for alienation by will.
6. Alienation by sale or mortgage:
No coparcener can alienate his undivided interest in a coparcenary by sale or mortgage, without the consent of the other coparceners. This general rule admits of certain exceptions. Thus, the manager of a Hindu joint family can alienate, by sale or mortgage, a portion (or even the whole) of the joint family property for a legal necessity or for the benefit of the estate, even without the consent of the other coparceners. Likewise, if such manager is the father, he enjoys an additional power of such alienation for the payment of his antecedent debts which were not incurred for illegal or immoral purposes. (This will be discussed in greater detail later on.) The separate property of a coparcener can, on the other hand, be freely alienated by him, by way of sale or mortgage, or otherwise.
7. Partition:
A joint family or coparcenary property is liable to be partitioned, whereas there can be no question of partitioning the separate property of a member of a joint Hindu family.
