Coparceners Or Parceners
Legal definition for Indian law research
Definition
Coparceners or parceners. The name given to persons who until 1926 inherited an inheritable estate by virtue of descents from the ancestor which conferred on them all an equal title to it. It arose by act of law only, i.e., by descent, which, in relation to this subject was of two kinds:-(1) Descent by the common law, which took place where an ancestor died intestate, leaving two or more females as his co-heiresses; these, according to the canon of real property inheritance, all took together as coparceners or parceners, the law of primogeniture not obtaining among women in equal relationship to their ancestor: they were, however, deemed to be one heir; and (2) descent by particular custom, as in the case of gavelkind lands, which descended to all the males in equal degree, as the sons, brothers, or uncles of the deceased intestate ancestor; in default of sons, they descended to all the daughters equally.
Coparceners had a unity though not an entirety, or necessarily an equality, of interest; if there were tow only, each was properly entitled to the whole of a distinct moiety; and being seised in moiety there was no jus accrescendi between them, for on the death of one of them intestate, her moiety descended to her heir-at-law, who held, subject to curtesy (if any), with the surviving parcener in coparcenary, although such heir might be a male and a collateral. Indeed, their estates are held in coparcenary so long as they claimed by descent. As soon as any part was served by conveyance, from the title of the remaining part, the part so severed was held in common.
Between the alienee and the other coparceners there was a tenancy in common. the remaining coparceners would, as between themselves, continue to hold in coparcenary.
They were seised both jointly and severally, and possessed a unity of title, but the estate might vest in them at different periods.
Coparcenary was like joint-tenancy so far as the same unity of title and similarity of interest was common to both, but they differed in this, that while coparceners always must have claimed by descent (for if two sisters purchased an estate to hold to them and their heirs they were not parceners, but joint-tenants), joint-tenants always claimed by act of parties.
This estate might be dissolved in any of the following modes:--
(1) By deed of partition, as
(a) Where coparceners agreed to divide the estate in to equal parts in severalty, each to have a determinate portion.
(b) Where they appointed some third person to divide the estate, and after a division by him, each coparcener, according to seniority of age, or as should be agreed between them, selected her own portion. The privilege of seniority was in this case personal; for if the eldest sister were dead, her issue should not choose first, but the next sister. But if an advowson descended in coparcenary, and the sisters could not agree in the presentation, the eldest and her issue, nay, her husband or her assigns, should present alone, before the younger. And the reason given is, that the former privilege of priority in choice upon a division arose from an act of her own, the agreement to make partition, and therefore was merely personal; the latter, of presenting to the living arose from the act of the law, and was annexed not only to her person but to her estate also:
(1) Where the eldest coparcener divided the estate, in which case she took the portion remaining after her sisters have made their choice.
(d) Where they agreed to cast lots for their shares.
(2) By the alienation of one of the parties which destroyed the unity of title.
(3) By all the estate at last descending to one person, which reduced it to a severalty; and
(4) By a compulsory partition or sale under the Partition Acts. See PARTITION.
The legal estate in coparcenary was abolished by the (English) L.P. Act,1925, s. 1, the entirety of the legal estate becoming vested in trustees for sale under s. 34 of that Act, but as from the 1st January, 1926, coparceners retain all their equitable rights in the proceeds of sale and in the land until sold as equitable interests under s. 39 and the 1st Sched. Part I. of the Act. Further the future creation of equitable interests in coparcenary has been prevented by (English) A.E. Act, 1925, s. 45, which abolished descent to the heir ,since the tenure depended on that descent except in cases where the heir is still ascertainable by under the old law, under s. 132 of the (English) Law of Property Act, 1925, see (English) Administration of Estates Act,1925, s. 51,or by descent (a) of an entailed estate in certain cases, and (b) on death of a lunatic who had attained 21 years of age in or before 1925, as provided by the A.E. Act, 1925, s. 51(a). Coparceners in whom the legal estate was vested on the 1st January, 1926, in general, if not more than four in number, hold the legal estate as joint tenants upon the statutory trusts, see 1st Sched. Part II. of the Act. As to partition by the court or otherwise, see PARTITION.
Coparceners had a unity though not an entirety, or necessarily an equality, of interest; if there were tow only, each was properly entitled to the whole of a distinct moiety; and being seised in moiety there was no jus accrescendi between them, for on the death of one of them intestate, her moiety descended to her heir-at-law, who held, subject to curtesy (if any), with the surviving parcener in coparcenary, although such heir might be a male and a collateral. Indeed, their estates are held in coparcenary so long as they claimed by descent. As soon as any part was served by conveyance, from the title of the remaining part, the part so severed was held in common.
Between the alienee and the other coparceners there was a tenancy in common. the remaining coparceners would, as between themselves, continue to hold in coparcenary.
They were seised both jointly and severally, and possessed a unity of title, but the estate might vest in them at different periods.
Coparcenary was like joint-tenancy so far as the same unity of title and similarity of interest was common to both, but they differed in this, that while coparceners always must have claimed by descent (for if two sisters purchased an estate to hold to them and their heirs they were not parceners, but joint-tenants), joint-tenants always claimed by act of parties.
This estate might be dissolved in any of the following modes:--
(1) By deed of partition, as
(a) Where coparceners agreed to divide the estate in to equal parts in severalty, each to have a determinate portion.
(b) Where they appointed some third person to divide the estate, and after a division by him, each coparcener, according to seniority of age, or as should be agreed between them, selected her own portion. The privilege of seniority was in this case personal; for if the eldest sister were dead, her issue should not choose first, but the next sister. But if an advowson descended in coparcenary, and the sisters could not agree in the presentation, the eldest and her issue, nay, her husband or her assigns, should present alone, before the younger. And the reason given is, that the former privilege of priority in choice upon a division arose from an act of her own, the agreement to make partition, and therefore was merely personal; the latter, of presenting to the living arose from the act of the law, and was annexed not only to her person but to her estate also:
(1) Where the eldest coparcener divided the estate, in which case she took the portion remaining after her sisters have made their choice.
(d) Where they agreed to cast lots for their shares.
(2) By the alienation of one of the parties which destroyed the unity of title.
(3) By all the estate at last descending to one person, which reduced it to a severalty; and
(4) By a compulsory partition or sale under the Partition Acts. See PARTITION.
The legal estate in coparcenary was abolished by the (English) L.P. Act,1925, s. 1, the entirety of the legal estate becoming vested in trustees for sale under s. 34 of that Act, but as from the 1st January, 1926, coparceners retain all their equitable rights in the proceeds of sale and in the land until sold as equitable interests under s. 39 and the 1st Sched. Part I. of the Act. Further the future creation of equitable interests in coparcenary has been prevented by (English) A.E. Act, 1925, s. 45, which abolished descent to the heir ,since the tenure depended on that descent except in cases where the heir is still ascertainable by under the old law, under s. 132 of the (English) Law of Property Act, 1925, see (English) Administration of Estates Act,1925, s. 51,or by descent (a) of an entailed estate in certain cases, and (b) on death of a lunatic who had attained 21 years of age in or before 1925, as provided by the A.E. Act, 1925, s. 51(a). Coparceners in whom the legal estate was vested on the 1st January, 1926, in general, if not more than four in number, hold the legal estate as joint tenants upon the statutory trusts, see 1st Sched. Part II. of the Act. As to partition by the court or otherwise, see PARTITION.
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