MORO VISHVANATH V. GANESH VITHAL

Case Name:	MORO VISHVANATH V. GANESH VITHAL[i]
Citation:	(1873) 57 BOM. H.C. REPORTS 444
Cases referred:	Sakho Narayan v. Narayan Bhikaji, [ii] [6 Bom. H.C. Rep A.C. J.238]
Case History:	This was a regular appeal from the decision of Chintaman S. Chitnis, First Class Subordinate Judge of Ratnagirh in Suit No. 905 to 1866
Jurisdiction:	Civil Appealate Jurisdiction Appeal no: Regular Appeal no 29 of 1873
Date of Judgement:	1873, October 29
Defendants and Appelants:	Moro Vishvanath and Others
Plaintiffs and Respondent:	Ganesh Vithal and others
Counsels for the appelants, the original defendants:	Ravasaheb V.N. Mandlik
Government Pleader the plaintiffs:	Dhirajlal Mathuradas
Bench in the first class subordinate:	Chintaman S. Chitnis, First Class Subordinate Judge of Ratnagirh
Bench in Bombay High Court:	WEST, J , NANABHAI HARIDAS, J.

INTRODUCTION:

Coparcenary is a concept borrowed from the Hindu Undivided Family (HUF). Coparcenary property division is the partition of property among co-owners or joint owners who have inherited to the Hindu joint family. The coparcenary’s leader is known as the Karta.

The term “Hindu joint family” was defined in the case of Rajgopal v Padmini[iii]. In accordance to this case, if two or more families consent to live together by sharing their food, water resources, and so on and live under the same roof, they are considered a Hindu joint family.

In another decision, Ram Kumar v Commr. Income Tax[iv], it was established that a Hindu joint family counts as as a single entity and is led by a karta. Karta is an nodal person in the Hindu undivided family; he is referred to as the clan’s manager. Sui generis refers to the position of karta. This means he occupies a unique position inside the Hindu family estate.

In a Hindu family, there might be more than one karta. He could be any senior member or someone who is capable of managing the entire family. His primary responsibility is to represent or act on account of his family members. Females and minors are reliant on the joint family’s karta. They are all reliant on Karta for maintenance. If a Karta fails to provide support for an unmarried daughter in a joint family, he will lose his right to be called a Karta. Karta’s abilities can alter at any time.

In a Hindu undivided family, Karta could be further modified. Karta, unlike the other members of the family, has some rights in the joint family property. He has the authority to administer the entire property as well as the family members. If the family requires assistance, he can manage or borrow from others. He has the authority. He has the authority to represent the family in legal matters or other matters.The Karta has the ability to represent the entire family. He has the authority to enter into contracts for the benefit of the family, and he is responsible for the family and has no bad intentions. If there is a conflict among family members, he has the authority to refer the matter to arbitration. He has the authority to inform family members about the situations in the coparcenary. He also has the authority to alienate the joint family’s property if there is a need, such as repaying a debt incurred for the benefit of the joint family.

FORMATION OF COPARCENARY: THE TWO DIFFERENT SCHOOLS

Before the codification of Hindu laws there were two school of thoughts to administer Hindu laws.

MITAKSHARA:

According to the Mithakshara doctrine, the right to ancestral property is inherited at birth. The property at Mithakshara School can be partitioned. The son becomes a joint owner of the property, with the same rights as the father. The father has no right to alienate property. Survivorship exists at Mithakshara School.

The rule of inheritance was followed in this school of thought according to the “notion of propinquity”, which is proximity in order of blood relation. The Hindu succession laws of 1956 followed the same logic. The allocation of parental property was based on the doctrine of possession by birth, which meant that the boys of the family had exclusive rights by birth in the joint family’s property, while the daughters of the family had none. “The doctrine of survivorship” was the name given to this allocation rule. It basically meant that the property should be given to the successor who will ensure the family’s survival in the future. There is a sense of belonging; no one has exclusive ownership.

In Mithakshara school, there are two sorts of inheritance. They are apratibandhadaya, which implies they inherited property from direct male ancestors such as father, father’s father, and so on. There also exists Sapratibandhadaya, which indicates property inherited from a paternal uncle, brother, or other relatives, among other things.

DAYABHAGA:

The right to ancestral property only becomes available after the death of the last owner, according to Dayabhaga school. The parent has the authority to sell the property at Dayabhaga School. This school has a system of succession. The law of inheritance relied on the notion of faith-based reward or spiritual advantage in this school of thinking. Based on the theory of oblations, the person providing more spiritual benefit would have the right to inherit the property. In this school, ladies might inherit property, and sons of the family did not have sole ownership of the property. The boys do not gain any interest in ancestral property by birth, but their claim comes after the death of the Karta, who represents the family’s ultimate head. The sons obtain property as heirs rather than survivors.

HISTORY OF LAW OF INHERITANCE:

Coparcenary began in ancient Hindu jurisprudence and has since become a key aspect of Hindu law. All rules and provisions concerning property and its rights have traditionally been oriented toward men in Hindu law. They were framed solely for the benefit of the family’s men, while women were always deemed subordinate.

Before the Hindu Succession Act of 1956[v], people were controlled by customary laws that differed from region to region and also on a caste basis. These laws were notable for their gender discrimination and legal variety. Due to a lack of resources, the proposed law could not be implemented throughout the country, resulting in variances in its implementation across the country. This resulted in many schools of thought.

FACTS OF THE CASE:

1. The plaintiffs and defendants are both descendants of Udhav, the owner of the property in question. The former are beyond, while the latter are within, according to the fourth degree from Udhav. The plaintiff’s claim for division was allowed by some of the defendants but contested by the rest of them  primarily on three grounds: first, unsuitable valuation of the claim, second, limitation, and third, the contention that the parties had been apart for fifty years.
2. The subordinate judge passed a decree in favour of the plaintiff.
3. Contention raised by both the sides before the subordinate judge:

Plaintiff:	Defendant:
Appellants asserted that descendants of a common ancestor more than four degrees removed from the original acquirer of the property could not, in any case, pursue partition.	The defendant asserted that anyone who was more than four degrees away from the initial buyer of the property could seek partition of the Joint Family Property.

Legal Issues Raised:

1. Whether a person removed over 4 degrees from the original acquirer of the property could demand partition of the Hindu undivided family.

Judgment:

Decision: A partition is not permitted by someone more than four degrees removed from the property’s acquirer or original owner, but it can be demanded by someone more than four degrees removed from the last owner, regardless of how far distant he is from the original owner.

Ratio decidendi and illustrations as given by the court:

1. The authorities cited did not preclude descendants below the fourth degree from requesting a division of the Joint Family Property. They merely lay forth text that limits the power to division of 4th in descent to reunited coparceners rather than undivided ones (as in the current scenario).
2. B (son), C (grandson), D (great-grandson), and D had two sons, E & F (great-great-grandson), were all lineal descendants of the original owner of the contested property. There has been no division of the family property, and D, E, and F live in a state of the union. Can E and F force D to give them their portion of the ancestral property? They can, according to the law, because their boys are equally interested in their father’s ancestral property. Similarly, if B and C die, leaving A and D members of an undivided family, and A dies, the all of his property devolves upon D, who then has two sons, E and F. They, or either of them, may also sue their father for the partition of the property as it will be ancestral property.
3. A is the original owner of the disputed land. B (son), C (grandson), and C’s two sons, D and D1 (grandsons), are among his three lineal descendants. A, D, and D1 are members of an undivided family after which A dies, leaving his entire estate to D and D1 jointly, and D has two sons, E and F, who survive him. A suit against the partition of JF property would be perfectly open to E & F or even G (son of E) & F if E died before the suit-it would be a suit against D1 by a deceased brother’s sons or grandson, but E & F are both 5th and 6th in descent from the original owner of the property, whereas D & D1 are only 4th in descent.

ANLAYSIS AND CONCLUSION:

Through numerous decisions, the judiciary have interpreted Hindu Joint Family and the laws surrounding it, helping to explain the role of coparceners, property partition, and succession rules of the same.

When a Hindu family passes down property from one generation to the next, the property becomes ancestral or coparcenary property. Coparcenary, on the other hand, is a body that is confined to the propositus and his three generations, namely his son, grandson, and great grandson. Male members of a Joint Hindu Family are referred to as co-parceners or co-sharers in the Joint Hindu Family’s property. The property of the Joint Hindu Family belongs to the co-parceners as owners and female members of the family have only a right to maintenance for their lifetime and, in the case of unmarried daughters, a claim for marriage expenses. In other terms, a coparcenary is a member of the Hindu Joint family’s inner cabinet who is capable of maintaining the joint family together. To be a co-parcener, he must pass one of two tests. First, he must be within four degrees of the living propositus, and second, he must have the right to demand partition.

In the case of Moro Vishwanath v. Ganesh Vithal, a crucial question was answered regarding family division and whether a person who has been detached from the original family for more than four degrees can pursue family property partition. The court stated that a person can legally petition for a partition in the family property until he is no more than four degrees distant from the original family, regardless of how far away he is from the family.  The question of whether a person is within four degrees is answered in the case of Dasrath Rao v. Rama Chandra[vi], where the answer outlined that it has to be determined on the basis of the person requesting the partition’s birth date, and if he is within four degrees, the person can ask for a partition even if the estate may not have gone into the hands of a member related beyond four degrees at the time. In a case involving a similar problem, it was decided in the matter of Venkayamma v. Venkatramanayamma [vii]that the right to partition determines the right to take by survivorship.

Dayabhaga and Mitakshara are the two Hindu law schools. The Coparcenary definition is also distinct in both classes. Coparcenary in Mitakshara School comprises of four generations of male descendants, although the daughter retains her status as a coparcener following the post Amendment Act, 2005 [viii]in the historic Vineeta Sharma v. Rakesh Sharma [ix]decision.

Evolution of Coparcenery:

The concept of coparcenary has evolved significantly throughout time. The addition Act 2005’s major purpose is to eliminate gender discrimination, and this addition was established to protect women’s roles in our society. In the Dayabhaga School of Law, there is no presence of four generations, and the concept of interest in coparcenary property is based on the last holder’s death. The coparcenary system has undergone significant alterations. Daughter has been admitted to Mithakshara School. A daughter can be a coparcener of a coparcenary, according to the 2005 Hindu Succession Amendment Act. Property rights for women represent a significant shift in the coparcenary system and the Hindu succussion. There are other fundamental provisions in the Indian Constitution that protect women’s property rights, such as Articles 14, 15, and 16.

The first move toward women’s rights was Section 6 of the Hindu Succession Act. It stated that “on and from the commencement” of the Amendment Act, 2005, the daughter of a coparcener has a right on the coparcenary property by birth, just as the son does. A daughter can do anything she wants with her portion, and the men will not manage it. If a female dies, her offspring will inherit the property rather than the husband’s lineage. There was a cancellation of survivorship succession and a succession of testamentary succession and intestate succession. The Hindu Succession Act became more gender neutral and brought many reforms, although it still did not grant women exclusive rights, which were later amended. This amendment became a cornerstone in defending constitutional values, and India became a greater welfare state as a result. The Kerala Hindu Family Abolition Act 1975, which took effect in 1976, outlawed the joint family system in Kerala. All of this demonstrates how far women have progressed in society. Women are now viewed by society in a different light than they were previously. Women who own property and assets are more powerful, and they should serve as role models. Because of these new adjustments, they flourished in society. The legislators demonstrated their ability by crafting laws with care and without regard for gender. These improvements reduced the likelihood of women being exploited, and if they are exploited, their voice has resonance in society. If a woman dies intestate, her property is distributed first to her husband’s heirs, and Hindu women’s property is held in the husband’s lien. In the ancient world, there were various Acts that abrogated the coparcenary. There is still a need for legal rights education to include the full range of developments brought about by current Hindu law. People’s views about equality should be transformed as a result of social awareness.

***********

References:

---

[i] (1873) 57 BOM. H.C. REPORTS 444

[ii] [6 Bom. H.C. Rep A.C. J.238]

[iii] AIR 1990 Mad 353

[iv] AIR 1953 ALL 150

[v] Hindu Succession Act of 1956

[vi] AIR 1951 Bom 141

[vii] 25 Mad 678 (PC)

[viii] Hindu Sucession Amendment Act 2005

[ix] MANU/SC/0582/2020

Written by: S Abhipsha Dash, First Year student of symbiosis Law School as an intern under Legal Vidhiya