This article has been written by Aksshay Sharma, from the Department of Laws, Panjab University, Chandigarh. This article aims to explain the traditional law of inheritance of property under Hindu law. The article explains the important terms related to inheritance under Hindu law, it then explains the concept of coparcenary, devolution of property under Mitakshara and Dayabhaga school. The article predominantly deals with inheritance under traditional Hindu law.
The traditional Hindu law is one of the oldest of personal laws in the world. Unlike positive law, according to which laws are those which are made by a sovereign (a human), Hindu law looked to Vedas as the most earlier sources of law. According to ancient Hindu jurisprudence, Vedas were the source of “Dharma” which means a person’s moral, social and legal duties, which a person is supposed to obey and adhere to. However, Vedas (also called shrutis) were not the formal sources of Hindu law. Smritis were the formal sources which were based on the Vedas. The Smritis enunciate rules of dharma (Mulla). Shruti, which strictly means the Vedas, was, in theory, the root and original source of dharma. The traditional Hindu Law, especially in the context of inheritance, was patriarchal and much emphasis was on the male aspect. However, the Hindu Succession Act has fundamentally altered that concept and thus the specific reference to changes under the Hindu Succession Act has also been pointed out.
Schools of Hindu law
Various commentaries and digests have resulted in the emergence of two schools of Hindu law, the Mitakshara and the Dayabhaga, which contained the law of inheritance. These schools had their own operational areas and were recognised in different parts of India. Before the advent of British rule, the major laws of inheritance in India had either their roots in religion or were deeply influenced by personal laws which owed their allegiance to religion and custom. The fundamental difference between these two schools is on the principle based on which the right to inheritance is to be determined.
In the Mitakshara school of inheritance, property is inherited by the successors (coparceners) merely based on the fact that they were born in the family of the property holders and in case of Dayabhaga the property goes to the successors (coparceners) on the death of the father or holder of the property.
The Mitakshara was considered to be more biased against women and gave them the least rights to inherit property. Though Dayabhaga was also biased, it still gave more rights to the women and was thus considered to be a liberal school.
Mitakshara school which was interpreted by Vijaneshwar’s commentary and was prevalent all over India except Bengal and Assam, whereas, Dayabhagha, as interpreted by Jeenutavahan, was prevalent only in Bengal and Assam.
Understanding the law of inheritance
Few concepts need to be understood first in order to understand the Hindu law of inheritance.
Joint Hindu family
Joint Hindu families consist of all members who are descendants of common male ancestors and such members include daughters, wives and widows as well. The male ancestor is the head of the Joint Hindu family. Thus, a Joint Hindu family includes the common male ancestor of his wives and unmarried daughters and sons, collaterals and their wives, sons and unmarried daughters. Wife deserted by husband u/s 13 (1)(ib) of Hindu Marriage Act 1955 that is husband left a wife without any cause for more than 1 year. There was no limit to the number of descending generations. This was the joint Hindu family in the traditional context.
An unmarried daughter on marriage ceases to be a part of her father’s joint family and joins her husband’s joint family as his wife. If a daughter becomes a widow or is deserted by her husband and returns to her father’s house permanently, she again becomes a member of her father’s joint family. Her children, however, don’t become members of her father’s joint family and continue being members of their father’s joint family. The cord that knits the members of a joint family is not property but the relationship with one another.
In simple words, a joint Hindu family is a group of relatives related by blood and kinship. It consists of common male ancestors, wives of all those people who are related to the common male ancestor, their sons, their unmarried daughters, and people like uncles, aunts, his nephews, nieces etc. The joint and undivided Hindu family is the normal condition of the Hindu society.
Coparcenary under Mitakshara is different from a coparcenary under Dayabhaga.
The unique concept of coparcenary is the product of ancient Hindu jurisprudence which later on became the essential feature of Hindu law in general and Mitakshara school of Hindu law in particular. The concept of coparcenary as understood in the general sense under English law has a different meaning in India or the Hindu legal system. In English law, coparcenary is the creation of the act of parties or the creation of law. In Hindu law, coparcenary cannot be created by acts of parties, however, it can be terminated by acts of parties
As stated earlier there was no limit to the number of generations descending from a common male ancestor in a Joint Hindu family. However, this is not the case in a coparcenary. A coparcenary is a type of relationship which is narrower or smaller than the joint Hindu family, its generations are limited.
Within a joint Hindu family, there is another body of persons called coparcenary which consists of a father, his son, his grandson and his great-grandson. Thus, from a common male ancestor, only males descending up to 3 generations were considered as a coparcenary and only these coparceners had a right to inherit the coparcenary property by birth being the sons, grandsons, and great-grandsons of the holders of the property for the time being.
For instance, if F is a common male ancestor then the coparcenary will consist of 3 generations below him, who are F’s lineal descendants i.e. F’s son, F’s grandson and F’s great-grandson. F is common to all three descendants. The three generations are to be counted excluding the last male holder.
Thus, under traditional Hindu law coparcenary consisted only of male members, females were excluded. Only the males (coparceners) had the right to inherit the coparcenary property and only they could demand partition. Therefore, the wife and daughters were not members of the coparcenary. Traditionally, coparceners were those who could perform funeral rites and this was available only to the males.
Coparcenary property or ancestral property is that property which a coparcener has inherited either from his father, grandfather or great grandfather. The said property must be inherited and should not be received either through a will or gift. Further, under a Mitakshra coparcenary, right to such property is available only to the son(s), grandson(s) and great-grandson(s), who formed the coparcenary under Mitakshara school, and no female had a right to such property. Thus, in other words, only agnates had the right to such property and not cognates. Although females were not part of coparcenary, they were entitled to maintenance out of coparcenary property.
It must be noted that the above definition of coparcenary and demand to ask for partition is under the traditional Hindu law, now the meaning and import of coparcenary has been changed after the 2005 amendment to Hindu Succession Act,1956. After the 2005 amendment, even daughters are also included in the coparcenary in the same sense of the son as if she is also a son.
Devolution of property
The right to coparcenary property accrued to a coparcener on his birth itself is a striking feature of Mitakshara coparcenary. Thus, the existence of male owner of the property was not a hindrance to the acquisition of coparcenary property, because the factum of birth was enough to bestow the right to property. Therefore, it is said that a coparcener has an “unobstructed heritage” to coparcenary property i.e. the right to such property is not obstructed by the existence of the male ancestor i.e. father, grandfather and great-grandfather. The allocation of the inherited property was based on the law of possession by birth.
Further, under the Mitakshara school, the property devolved as per survivorship i.e. on the death of the last male holder property will devolve in equal share to those coparceners who are surviving within the coparcenary. This means that if one of the coparceners other than the last male holder dies, then his (deceased) probable share would be distributed among the surviving members of the coparcenary. He leaves nothing behind that can be called his own share in the joint property.
For example, a coparcenary comprises the father and his two sons. Each of them has a probable 1/3rd share in the property until the undivided status is maintained. On the death of one of the sons, his probable 1/3rd in the property is taken by the surviving coparceners ie father and the surviving brother and the deceased will die without any share in the coparcenary property. The share of the father and the surviving son will be increased to a probable half. The right of survivorship is one of the basic rights of a coparcener. Thus, the quantum of interest of an individual coparcener is not fixed as it fluctuates with deaths and births in the family.
This can also be understood as because there is a community of ownership (co-owners) and unity of possession of coparcenary property by the coparceners, their specific share is not fixed or they cannot call a specific portion of coparcenary property as their own until a partition takes place. There is a common enjoyment of coparcenary property by the coparceners.
This concept of survivorship has been removed after the 2005 amendment to Hindu Succession Act, now the only way for devolution of property is either by a will (testamentary) or by the rules of intestate succession given under Hindu Succession Act.
There is no concept of a joint family under the Dayabhaga school as compared to the Mitakshara. There is no coparcenary consisting of father, son, son’s son (grandson), son’s son’s son(great-grandson). The existence of a Dayabhaga coparcenary comes only after the death of the father, after which the son will inherit the property of him and constitute a coparcenary. In this school, there is no right by birth given to the son. There is also no distinction between separate and coparcenary property and the entire concept is based on inheritance, i.e. that the sons inherit the property of their father after his death.
In a Dayabhaga joint family, the father has absolute powers of management and disposal over the separate as well as the coparcenary property and the sons have only a claim of maintenance. It is because of this reason there is no concept of fluctuating interest of coparceners in Dayabhagha family, as births and deaths of coparceners, does not affect the absolute right to the father to the property.
As stated earlier, although there is no coparcenary between father and his male lineal descendants this does not mean there can be no coparcenary between two brothers. For instance, F is an absolute holder of a certain property. He has 2 sons S1 and S2. Now since this is a Dayabhagha family there is no coparcenary relationship between F and his sons who are his lineal descendants. After the death of F, the property will go to his sons. But now there can be a coparcenary relationship between S1 and S2 for distribution of property. Thus, it is wrong to say that the coparcenary concept is completely absent in a Dayabhagha family.
Further, females can also become a member of a Dayabhagha coparcenary. If a male dies without leaving a son, then his place is taken by his wife (now a widow) or daughters if the widows also die. Thus, Dayabhaga school is more liberal than the Mitakshara school, however, still, male members were predominant. Therefore, there is no concept of survivorship in a Dayabhagha coparcenary.
Devolution of property
Unlike under the Mitakshara school, in which a coparcener has a right to the property since his birth, under Dayabhaga the right to inherit property arises only on the death of the father. Thus, the birth has nothing to do with the right to inherit the property, therefore it is said that under Dayabhaga school, a coparcenary has unobstructed heritage. The property is inherited in the Dayabhaga school after the death of the person who was in possession of it.
Since the coparceners under Dayabhaga have no right to property because of their birth in the family, the father thus has absolute right to dispose of all kinds of property, separate as well as ancestral, by sale, gift or through a will. Thus, there is no unity of possession and common ownership of coparcenary property. In other words on the death of the father, where he is survived by two or more of his sons, all of them inherit his property jointly and hold it as tenants-in-common. Under Dayabhaga the father has an absolute right of alienation of property, whether it is self-acquired or ancestral.
The traditional Hindu law did not treat women equally as men, they were not given rights similar to what men had. One of the earliest acts to give women the right to ancestral property was The Hindu Women’s Rights to Property Act, 1937. However, the landmark change in women’s status in the ancestral property was brought by the amendment to the Hindu Succession Act 1956. It for the first time enabled women to be a coparcener and to have the same rights in ancestral property as she would have had if she had been a son. However, despite this, the interpretation of court of the Act particularly in Prakash v.Phulavati (2015) did not confer rights to all females. Daughters whose father had passed away before coming into force of 2005 were not covered under the new amendment. However, this was also rectified in Vineeta Sharma vs Rakesh Sharma, in which the Supreme Court gave retroactive effect to the 2005 amendment and truly made women a coparcener in the same manner as the son. This judgement has removed the final hurdle in women’s right to ancestral property.
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