To understand the conception of coparcenary it is necessary to note the distinction between ancestral and separate property. The property inherited by a Hindu from his father’s father and father’s is ancestral property. Property inherited by other relations is his separate property.
The essential feature of ancestral property is that if that person inheriting it has sons, grandsons or great grandsons, they become joint owners with him. They become entitled to it by reason of their birth. Father, son, son’s and son’s son together constitute coparcenary, because they have common ownership in the ancestral property.
The conception of a joint Hindu family constituting a coparcenary is that of a common male ancestor with his lineal descendants in the male line four degrees counting from and inclusive of such ancestor. No coparcenary can commence without a common male ancestor, though after his death it may consist of collaterals, such as brothers, uncles and nephews, etc.
A member of a joint family may be removed more than four degrees from the common ancestor and yet he may be a coparcener. If he can demand partition he is a member of coparcenary. Only those members of a joint family can demand partition that is within four degrees from the last holder of the property.
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A joint Hindu family consists of all persons lineally descended from a common ancestor, and includes their wives and unmarried daughters. A Hindu coparcenary is on the other hand much narrower body than the joint family. It includes only whose persons who acquire by birth an interest in the joint of coparcenary property. These are the sons, grandsons and great grandsons of the holder of joint property for the time being.
Illustration:
A is the holder of the ancestral Property. He has two sons B and C.
B has a son D and C has a son E
D has a son F and E has a son G
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F also has a son X. All are alive.
The joint family consists of all of them but the coparcenary does not include X in it so long A is alive. X has no interest in the property in the life-time of A. After A’s death X becomes coparcener with others.
(a) The share which a person inherits from his maternal grandfather is not ancestral property but his separate property.
(b) As for the self-acquired property gifted by the father to his son, there is difference of opinion among the High Courts to India. In Calcutta it is held to be coparcenary; in Allahabad, self acquired; in other High Courts a right has been reserved for the father to signify his intention as to whether it should be held to be coparcenary or to be self-acquired.
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Property inherited from paternal ancestors is “ancestral property” as regards the male issue of the prospectus, but it is his absolute properly and not ancestral property and regards other relations.
Thus where the ancestral properties in the hands of B were properties which originally belonged to his ancestors, but “B” was the last male holder of the property and he had no male issue, there was no surviving member of a joint family, be it a descendant or otherwise, who could take the property by survivorship, it was held that the sister of “B” would be entitled to inherit the property in the hands of “B” in preference to collaterals of “B” as regards them the property was not “ancestral property” even if according t the prevailing custom of the area, collaterals and not the sister were preferential heirs to ancestral property in the hands of the prospectus. (Dipo v. Wassan Singh, A.I.R. 1983 SC 846).
