A Hindu joint family comprises all persons lineally descended through males from a common ancestor including their wives and unmarried daughters. Whereas a Hindu Mitakshara Coparcenary is a body narrower than a Hindu joint family and consists only of males of upto 4 generations who acquire an interest in the Coparcenary property or the joint family property by birth with a unity of possession. The person having interest in the coparcenary property is known as a coparcener.
Coparcenary property consists of the ancestral property and not the separate property of a coparcener. Ancestral property is the property inherited by a Hindu from his father, father’s father or father’s, father’s father whereas the property inherited from any other relation or the self-acquired property of the person is his separate property.
The two main schools of Hindu law are Mitakshara school and Dayabhag school. The Mitakshara law is applied in whole of India except the states of Bengal and Assam where the Dayabhag system is followed.
The Mitakshara Coparcenary recognizes 2 modes of devolution of property which are survivorship and succession. The principle of survivorship applies to joint family coparcenary property whereas succession applies only to separate property. Females are absolutely excluded from the Mitakshara coparcenary.
On the other hand, Dayabhag recognizes only succession as the mode of devolution. Here no member of the family has a right by birth and every member holds his property as a tenant in common and on his death the property passes on to his heirs.
Now while bringing in the Hindu Succession Act, 1956 the legislature had the option to assimilate Dayabhag and Mitakshara law in the sense that in Mitakshara also no member has a right by birth and on the death of the member the property passes to his heirs. This method would have given equable treatment to the nearest female heirs of a coparcener. But the legislature chose to retain the Mitakshara Coparcenary and to confer on the daughters and the other female members mentioned in class I of the schedule (widow, mother, daughter of a pre-deceased son, daughter of a pre-deceased daughter, widow of a pre-deceased son, daughter of a pre-deceased son of a pre-deceased son, widow of a pre-deceased son of a pre-deceased son), the right to share the undivided interest of the deceased coparcener through intestate succession. This disentitled the female members from the right of joint ownership of the ancestral property thus keeping them out of the Coparcenary which led to inequality against them.
To remove this inequality many states came up with amendments. States of Andhra Pradesh, Tamil Nadu, Maharashtra and Karnataka inserted provisions wherein the daughter was made a coparcener by birth in the joint family property in her own right in the same manner as the son. This scheme was followed by the central legislature which passed the Hindu Succession Amendment Act, (2005). This act made the daughter a coparcener by birth. It also omitted Section 23 of Act which dis entitled a female heir to ask for partition in respect of a dwelling house, wholly occupied by a joint family, until the male heirs choose to divide their respective shares therein. Thus this amendment removed the discrimination against females.
Hindu Succession Amendment Act, (2005) and females as coparceners
The most significant amendment made by the Hindu Succession Amendment Act, (2005) was to make the daughter a coparcener by birth in her own right. The term Mitakshara Coparcener now includes daughters in it. A daughter now has the same rights in the Coparcenary property as that of a son and is subject to the same liabilities as that of a son in respect of the said Coparcenary property. For example if the coparcenary property is subject to some debts then on partition the female as a coparcener would also be liable to pay the debts over her share of the property and thus is subject to the same sets of liabilities as that of a son in respect of the said property. Also any property which a daughter obtains under the amended section will be held by her with the incidents of Coparcenary property and she can dispose it off by the testamentary disposition. This act also abolishes survivorship and the only modes of devolution now followed are testamentary or intestate succession. Further in case of notional partition the daughter is allotted the same share as is allotted to a son. This act also removes the obligation of a son, grandson or great grandson to pay the debts of his father, grandfather or great grandfather solely on the ground of his pious obligation thus bringing equality amongst sons and daughters.
The Hindu Succession Act, 2005 applies to all daughters including those who are married, but this act does not apply to daughters married before the commencement of the Hindu Succession Amendment Act, 2005. Moreover, the provisions of the amendment act do not apply in case where the partition of the joint Hindu family has already been effected before 20th December 2004.
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