Schools of Hindu law: Mitakshara Law
Mitakshara school bases its law of inheritance on the principle of propinquity i.e. one who is nearer in blood relationship succeeds. Mitakshara does not give full effect to this principle, it has subsidiary rules which limits this principle:
Exclusion of females from inheritance
Preference of agnates over cognates.
In 2005 doctrine of son’s right by birth in joint family was amended, now both son and daughter got equal interest by birth in the coparcenary property of Mitakshara joint family. The biggest change that came after the amendment was that every member of the joint Hindu family became a coparcener.
The unobstructed heritage is by survivorship and the obstructed heritage would be decided through succession.
It gives the basis of coparcenary at the first time at the birth of the son.
Sapinda relationship is the basis on which inheritance is determined.
Each son at birth acquires equal interest with his father and after death of the father, the son takes the property not as his heir but by survivorship.
It is a creation not out of law but a desire to live jointly. Income in Mitakshara families belong to the entire family as a group of people and no member has the right to claim absolute right in that property.
One can demand partition of such Hindu undivided family property.
Every coparcener takes a defined ownership which is based on fractions and has been looked at from the point that what is the particular numerical quantification of that person’s right in the property. The percentage may fluctuate depending on the number of births and deaths.
It is unity of ownership.
Hindu Succession Act (Sec. 8-13), rules for Hindu undivided family property. When these rules are applied, individuals are assigned a share at the time of their birth. All these distributions happen according to the class and entry which is made in their respective schedules under the succession act.
Anybody can claim their share as soon as they are able to.
In Moro vishwanath v. Ganesh vitthal, the Supreme Court defined coparcenary in certain terminology. It was held that coparcenary property is held in collective ownership by all coparceners in a quasi- corporate capacity. Incidents of coparcenary means accrual of rights of inheritance to the coparceners will happen under what circumstances. Incidents summarised in the case:
Lineal male descendants of a person upto the third generation get ownership in the ancestral properties of such person.
The lineal male descendants of a person can at any time ask for their share in the property by asking for partition.
Each member of the coparcenary till the time partition happens has got an ownership extending over the entire property conjointly/ together with the other coparceners such that the enjoyment of properties is in common.
Because of such co-ownership, the enjoyment and possession of the properties is common.
No coparcener can alienate the property unless it is for a necessity without the agreement of the other coparceners.
The interest of any deceased coparcener on the time of his death will be passed on to the surviving coparceners.
The court also held that every coparcener and every other member of the joint family has the right of maintenance out of the joint family property. This right of maintenance is going to subsist throughout the lifetime of the member as long as the family is remaining jointly.
In case of an illegitimate child, he will not be considered a coparcener but a member because the mother will not be a member of the joint Hindu family but this does not take away his right to inherit when partition happens. He can claim a right in the ancestral and property of the father. As he is not a coparcener, he cannot demand for a partition as well.