This article is written by Muskaan Garg from Symbiosis Law School, Pune. It deals with the history and evolution of the concept of coparcenary under Hindu law. It also takes into account the situation and the change caused as a result of amendments brought about in the law concerning the concept.
Coparcenary is a term used in matters related to Hindu Succession Law. It refers to a person who has the capacity to assume a legal right in his ancestral property by birth. It means ‘unity of title, possession and interest’. It is purely a creation of law; it cannot be created by the act of parties, except by adoption. It is directly derived from the concept and practice of Hindu undivided family.
Coparcenary is dealt within the Hindu Succession Act 1956 but has undergone major amendments which will be discussed further in detail.
Hindu undivided family
Hindu undivided family or a Hindu joint family is an extended family arrangement where every member is a lineal descendant of a common ancestor. This family includes a common ancestor who is generally the eldest and three generations of his descendants. This practice can also be seen in Jainism, Sikhism and Buddhism.
This family arrangement is governed by the Hindu succession act 1956. It is a codified act and is concerned with the transfer, devolution and ownership of inherited property amongst the Hindu joint family. The act, although patriarchal, has seen a few major changes within the laws withheld. At the time of incorporation of the act, it was a compromise between tradition and modernity due to which equality could not be attained. It has now sought to redress some anomalies created by traditional Hindu Law.
Hindu schools of law
Prior to the codification of Hindu laws, there were two schools of thought to regulate and administer Hindu laws.
The Mitakshara school
In this school of thought, the law of inheritance was followed according to the principle of propinquity which means in order of nearness of blood relation. The Hindu succession act of 1956 was also based on the same principle. The allocation of the parental property was accorded on the rule of possession by birth which meant that the sons of the family had exclusive right by birth in the property of the joint family while the daughters of the family-owned no such rights. This rule of allocation was known as the doctrine of survivorship. It basically meant that the property should be allocated to the inheritor who could continue the survival of the family in future. There is a unity of ownership; no person has a definite share as fluctuations keep happening due to births and deaths in the family.
The Dayabhaga school
In this school of thought, the law of inheritance was based on the principle of religious reward or spiritual benefit. The right of inheriting the property would lie with the person conferring more spiritual benefit based on the doctrine of oblations. In this school, even females could inherit the property and the sons of the family did not exclusively own birthright to the property. The sons do not acquire any interest by birth in ancestral property but their right arises after the death of the Karta which stands for the ultimate head of the family. The sons acquire property as heirs and not as survivors.
History of the law of inheritance
The concept of coparcenary originated from ancient Hindu jurisprudence and became an essential feature of Hindu law. Within the Hindu laws, all the laws and provisions regarding the property and its rights have always been male orientated. They were exclusively framed for the benefit of the men of the family while women were always considered submissive.
Before the advent of the Hindu succession act 1956, people were governed by customary laws which varied from region to region and also differentiated on caste basis. These laws were known for their gender discrimination and diversity in law. The proposed law couldn’t be spread throughout the country due to lack of means hence it saw variations in its practice in various regions. This led to different schools of thought and different practices which made the law further complex and off track. The laws commonly faced gender inequality in all practising regions.
Other laws prior to the Hindu Succession Act, 1956
The Hindu Law of Inheritance Act, 1929 was the first legislation to bring a woman into the scene of inheritance and its laws. This act conferred rights of inheritance upon three female heirs which are his son’s daughter, granddaughter and sister.
The Hindu Women’s Right to Property Act, 1937 was landmark legislation conferring ownership rights on women. This law brought about major changes in the then followed customary laws and schools of thought. It also affected coparcenary laws, partition laws and laws of property, inheritance and adoption. It also took into account the rights of widows and divorcees. Prior to this law, there were no codified laws to deal with the problem and disputes were resolved using customary practices. This act was passed after much voicing of discontent over the unsatisfactory condition of women’ rights. However, it was by no means enough to achieve the lofty target of gender equality.
Hindu Succession Act, 1956
The Hindu Succession Act, 1956 was focused upon providing equality as stated by Article 14 of the Constitution of India. The idea of the limited estate as propagated by the Hindu Women’s Right to Property Act was abolished in 1956 by the introduction of this act. This act tried to uplift the position and status of women in society by providing them with the inheritance of share in their father’s property.
Daughters were declared as legal heirs of their fathers and received the rights of inheritance of a share of the separate property owned by the father through the notional partition. The ancestral property owned by the family would still be legally inherited by the son of the family and the daughter would have no rights over it thereby following the rules of survivorship. This led to the continuity of inequality but at a slower or less diminishing pace.
Amendments within the Hindu law
It was observed that the legislation made on the topic were not able to serve the purpose of equality and hence required to be modified according to the changing needs of the society. There were further changes made to incorporate daughters within the ambit of property rights but nothing major could be achieved. In 2000, the law commission report suggested reforms with regard to women’s right to property. It pointed out all the clauses which supported bias towards the males and suggested significant changes to be made.
The Hindu Succession Amendment Act, 2005
The Hindu Succession Amendment Act 2005 was enacted with the aim of expanding the rights of women and daughters of the family and brings them at par with the male members. It followed the suggestions provided by the law commission report. By the way of this amendment the daughters of the family, whether married or unmarried, gained coparcenary rights with the other entire rights and liabilities equivalent to a son. This now meant that the daughter would also be liable for the debts and losses in addition to property shares and other rights.
Section 6 of this amendment challenged the fundamental principles of Hindu coparcenary law. Through this amendment daughters, both married and unmarried, were given equal rights over the coparcenary as the sons of the family. It also provided that the females of the family could now also act as the Karta of the family which they couldn’t previous to this law. Any reference made to a coparcener would also include daughters equally.
Any property inherently entitled by her would-be under coparcenary ownership and would not be disposed of by testamentary disposition. The amendment yet does not provide a completely fair chance as there are still provisions which have not been bought at par with equality like after her death all her property is to be owned by husband’s side of the family.
Difference between the rule of succession and rule of survivorship
The amendment of the Hindu succession act in 2005 brought forth the rule of succession overrules of survivorship. Prior to this amendment the daughters and other female relatives of the family were only considered as heirs and were entitled to their share of notional partition only after the death of the Karta while all the male members were eligible to acquire their shares even before the Karta’s death due to bearing the rights of coparceners, this was the rule of survivorship.
The rule basically meant that only sons of the family could inherit property by coparcener rights because they were considered responsible for the further survival of the family name. While the rule of succession implies that the property would be inherited by the order of birth irrespective of gender. This rule was introduced by the 2005 amendment and thereby included the daughters of the family within the coparcener rights.
After the enactment of the 2005 amendment in the Hindu succession act 1986, there were significant benefits for women in the societal structure. In today’s time, the benefits provided have been seen reaping and flourishing for the betterment of society.
Now all daughters of the family are coparcenary owners of the family property and own equality of rights and liabilities unlike in the past times when they were dependent on their male counterparts to consider them in their will to be able to yet obtain only a part of their rights. The option to respectfully avail their rights adds to their solid foundation and provides them with emergency economical backing which helps boost their confidence and potentially more.
Women of the family can now own the position of the Karta or the head of the family thereby breaking all stereotypes. This leads to enhancement of their strength and social worth which is much required in the society.
Shalini Sumant Raut & Ors vs Milind Sumant Raut & Ors
In this case, Rajaram died leaving behind 8 heirs, 5 sons and 3 daughters. His property was delved upon by intestate succession under section 8 of the Hindu Succession Act and not by survivorship. It was held that the applicants would have to consider the three female heirs and their share in the property by means of a notional partition. They will also have to consider the notional partitions which would take place in the future by the death of these coparceners leaving behind female heirs.
Prakash & Ors. v. Phulavati & Ors.
In this case, Phulavati claimed partition and separation of her share in her father’s property. While the pendency of this suit, the amendment was brought into force and the issue was whether it was retrospective in nature. The Supreme court held that daughters would have a coparcenary right on and from the commencement of the amendment thereby providing clarity that the amendment is prospective in its application which means that the right to coparcenary property would be available only to ‘living daughters’ of ‘living coparceners’ on and from the commencement of the amendment.
Hence, the concept of coparcenary has come a long way and has undergone many changes. The 2005 amendment is a big step in dismantling patriarchal forces because it grants women economic freedom and challenges the notion that they become a part of their husband’s family after marriage. It is necessary to understand whether equality exists only as a phenomenon or it is actually present for the awareness and approval of the majority of the people. It should not be solely realized by placing a section of women in traditions of inequality.
Thus, there is a need to create social awareness and to educate people to change their attitude towards the concept of gender equality. The need of the hour is also to focus attention on changing the social attitudes in favour of equality for all by enacting a uniform law.
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