Recently, Delhi High Court while adjudicating a claim on coparcenary property by survivorship in Sh. Neeraj Bhatia v. Sh.Ravinder Kumar Bhatia, 2024 : DHC: 5341- DB held that coparcenary is a creature of Hindu law and it cannot be created by an agreement of the parties. Coparcenary is a legal phenomenon which existed prior to enactment of Act of 1956 and was recognized in respect of properties inherited by a Hindu male from his male ancestors. However, after enactment of Section 8 of the Act of 1956, this position in law changed. Post 1956 individual properties inherited by a Hindu male from his male ancestors retained the character of a separate property in the hands of the Hindu male and did not acquire the character of coparcenary. Thus, after 1956 coparcenary continued only with respect to properties which were already impressed with the character of coparcenary prior to 1956 and in respect of properties which were subsequently blended by coparceners with the pre-existing coparcenary property. However, in the absence of a pre-existing coparcenary property, no coparcenary can be created after 1956 by a male Hindu on his own volition.
The Hon’ble Court further elaborated on doctrine of blending pertaining to coparcenary property. The relevant paras for better understanding of the issue involved are extracted as below:
“33. In law, for the ‘doctrine of blending’ to apply there must necessarily pre-exist a ‘coparcenary property’ as on 20th August, In the absence of the existence of a coparcenary property, late Sh. Balwant Lal Bhatia could not have blended his self-acquired
subject property into a ‘common hotchpotch’ on 20th August, 1993 as alleged in the plaint.
33.1. To appreciate this statement of law, it would be appropriate to first understand the genesis of formation of a coparcenary under Hindu Law.
33.2. First and foremost, it needs to be noted that a coparcenary is purely a creature of Hindu Law; and it cannot be created by an
agreement of parties except in the cases of reunion (Re:Bhagwan Dayal v. Reoti Devi).
33.3. Prior to the enactment of Act of 1956, a coparcenary was created in law if a male Hindu inherits property from his father,
such a property becomes ancestral in his hand as regards his son/sons. In such a case, the son/sons become a coparcener with the
father as regards the property so inherited, and the coparcenary consists of the father and the son/sons. It is not only the son/sons, but also the grandson(s) and great grandson(s), who acquired an interest by birth in coparcenary property13. This inherited property is also referred to as the ancestral property in the hands of the successor.
33.6. The devolution of interest of a coparcener in a coparcenary property is governed by Section 6 of the Act of 1956. With the amendment of the Act of 1956 in 2005, the daughter(s) of a coparcener are included as coparceners along with his son(s) and have same rights in the coparcenary property. The creation of coparcenary is, thus, codified in law and the identity of coparceners is also determined by law.
33.7. There is no provision of law by which Hindus can create a coparcenary by an agreement. The coparcenary as discussed above is thus, created only by operation of law upon inheritance of ancestral property, prior to 1956.”