This article is written by Shweta Singh. This article contains an elaborate analysis of the judgement rendered by the Privy Council along with the reasoning behind it. In addition to this, it also contains the detailed facts of the case and the arguments presented by both parties, for a better understanding of the implication of the case’s decision on the issue at hand. The main issue decided by the Privy Council, pertained to the question of what constituted ancestral property under the laws applicable to Hindus.

Introduction

The case of Muhammad Husain Khan vs. Babu Kishva Nandan Sahai (1937) was decided on 7th May, 1937 when the defendants chose to appeal to the Privy Council. This case dealt with the law relating to ancestry estate under Hindu law. In particular, it analysed the rules regarding succession of the property inherited from the paternal side. The laws relating to inheritance, applicable to Hindus, provide that anything that was inherited from the father’s side of the family, including the father, grandfather, and great-grandfather, is referred to as ancestral property and the son is considered a descendant. The case was primarily concerned with the Mitakshara school of inheritance law in the Hindu community. This article examines the Privy Council’s decisions in light of the various arguments presented by both the parties and the relevant laws and precedents.

Facts of the case

Ganesh Prasad was an inhabitant of Banda, in the province of Agra, and owned a large and valuable property including the village in dispute. He died on 10th May, 1914 and after his death, his surviving son, Bindeshri Prasad, was officially registered as the proprietor of the estate in the revenue records. In the execution of a decree for recovering money by the creditors, against Bindeshri Prasad, the village of Kalinjar Tirhati was put up for sale and the same was sold on 20th November, 1924 though the sale was confirmed on 25th January, 1925. 

Being aggrieved by this, Bindeshri Prasad then filed a suit on the ground that the sale was fraudulent. He passed away on the 25th of December, 1926 and in March, 1927 the defendant, Giri Bala, applied to be substituted in place of her late husband, as the plaintiff. The request was granted, as she was the only beneficiary of his estate. She also applied for amendment of the plaint, stating that she was entitled to the disputed village, according to the will executed by her father-in-law, Ganesh Prasad, on 5th May 1914. Her husband was entitled to a life interest in the property and therefore, after his death, she succeeded him as the absolute owner of the property. She asserted that even though the sale was effective against her husband, it should not affect her ownership rights. 

The trial judge permitted the amendment on 28th May, 1927 to which the defendant (appellant in the present case) objected and this led the judge to frame an issue relating to the validity of the said amendment. The judge was later transferred, and a new judge dismissed the suit on several grounds, one of which was that the amendment transformed the nature of the suit. The High Court, however, in an appeal made by the plaintiff, rejected the argument and held that the amendment was necessary in order to address the real issues in the case between the parties. The present case was an appeal against a decree of the High Court of Judicature at Allahabad, dated 23rd January, 1933 reversing the decree of the Subordinate Judge of Banda, dated 17th January, 1929 and allowing the plaintiff’s claim for possession of the village of Kalinjar Tirhati, along with the mesne profit. 

Facts leading to the execution of the will of 1914

For the purpose of understanding the relevant issue related to the existence of the will, it is important to keep in mind the facts that prove the existence of the will executed in the favour of the appellant. The brief facts leading to the execution of the will are as follows:

• In 1898, Ganesh Prasad applied to the Government of his province, to take over the administration of his property. In the last four years of his life, he attempted several times to reclaim the possession of his property, without much success. 
• Ganesh Prasad had a son, Bindeshri Prasad, with whom he had a tense relationship because of his improper character and tendency to spend lavishly. Therefore, on the 4th of August, 1911 Ganesh Prasad made a will at Allahabad and got it registered on the next day. According to the will, he bequeathed all his property for charitable and religious purposes and nominated seven executors and trustees for the trusts. Among these executors, was Mr. Swan, the Collector of the Banda district, and a member of the Indian Civil Service at the time. Mr. Swan received a copy of the will from Ganesh Prasad and was therefore aware of the execution and contents of the will.
• By this will, Ganesh Prasad not only disinherited his son, Bindeshri Prasad, but also did not provide any provision for his daughter-in-law, Giri Bala, or for any child that may be born to her in the future.
• During the outbreak of the bubonic plague in Banda in 1914, Ganesh Prasad fell ill and migrated to Motihari. While residing there, he made a new will on 5th April, 1914 revoking the will of 1911. He returned to Banda and passed away on 10th May, 1914. Upon his death, Mr. Swan took into custody his valuables and important documents for the purpose of protecting them. Pursuant to the directive of Mr. Swan, Deputy Collector Pandit Ram Adhin Shukla bolted the deceased’s rooms, which had numerous locked boxes and important documents, on the afternoon of the day of his death. The next day, Shukla prepared a written report and handed it over to the Collector. 
• The trustees of the will that was earlier executed in 1911, having no knowledge that it was revoked, filed for probate on 3rd June, 1914 thinking it came into force after his demise. The trustees thereby deposited a certified copy of the will made in 1911, claiming that the original might be found among Ganesh Prasad’s documents.
• The High Court directed the Collector of Banda to produce the original will made in 1911, but a Deputy Collector found the will made in 1914 instead. The Collector knew Ganesh Prasad’s handwriting and thus had no reason to doubt the genuineness of the will and hence, reported the same to the High Court. He ordered the Government Advocate to contest the probate of the 1911 will and to present the 1914 will in court. According to the instructions of the Collector of Banda, the original will was produced to the High Court by the Government Advocate, during the probate proceedings on 27th July, 1914. The High Court then directed that the will was to be entrusted to the custody of the Registrar until any further order in the matter. 
• Meanwhile, Bindeshri Prasad contested the probate of the 1911 will and sought mutation of the property, claiming ancestral rights.
• In a mutation proceeding between Bindeshri Prasad and the trustees of the 1911 will, a compromise was arrived at on 5th October, 1914. These trustees affirmed that the will executed in 1914 was genuine and was signed by Ganesh Prasad. They agreed to allow Bindeshri Prasad to retain ownership of his father’s estate according to the 1914 will. They also agreed to approach the High Court and request it to strike out their probate application of the 1911 will. In exchange, Bindeshri Prasad promised to pay his father’s outstanding debts, establish a trust for a house in the estate to be used as a dharamsala, and contribute Rs. 300 per annum for the expenses of performing Ram Lila in Banda.
• The probate application was dismissed on 7th November, 1914 by the High Court, and in December of the same year, the Revenue Officer sanctioned the mutation of the property in favour of Bindeshri Prasad. However, the original 1914 will was lost after the proceedings, and despite the search the will could not be recovered.

Issues raised in the case

The relevant issues that were raised in the case are as follows:

• Whether the High Court’s decree should be overturned solely on the basis of a misjoinder?
• Whether the will made in 1914 was valid and genuine?
• Whether Giri Bala had a valid right to the village in dispute?
• Whether the property provided under the will is ancestral and Ganesh Prasad’s son had an interest jointly with him?

Arguments of the parties to the case

Several arguments were presented by both parties, in support of their respective claims. In order to understand the judgement delivered by the Privy Council in this case, it is important to first delve into the arguments put forth by both the appellant and the respondent. 

Arguments raised by the appellant

The defendants, who were the appellants in this matter, argued that Giri Bala, as the widow of Bindeshri Prasad, could rightfully continue the suit under the cause of action that her husband instituted before his death. However, they argued that Giri Bala could not be allowed to bring a new, different, and completely independent cause of action that arose specifically from her personal rights and capacity. The appellants argued that though she could continue to pursue the claim that her husband had initiated, she overstepped her legal bounds by seeking to amend the plaint to include her personal claim for possession founded on the will of Ganesh Prasad, which was not part of the original relief sought by her husband. Thus, according to the appellants, the claim, which she made from her personal capacity, was improper and should not be allowed in connection to her continuation of her husband’s lawsuit.

It was further argued by the appellant, that the property provided under the 1914 will, was ancestral property, and therefore, Ganesh Prasad did not have any right to dispose of the same. Consequently, the will made in 1914 should be held invalid.

Arguments raised by the respondents

The respondent on the other hand, contended that the High Court allowed for the amendment that brought an additional cause of action, and such a decision cannot be reversed or altered as per Section 99 of the Code of Civil Procedure, 1908 (hereinafter referred to as the CPC), as the misjoinder of the cause of action in question, did not affect the merit or the jurisdiction of the case. It was also argued by the respondent, that the trial was done on the basis of the amended plaint containing both the original and new causes of action. It was further pointed out that both parties had already provided all the necessary evidence with regard to the two causes of action. Therefore, on the basis of the above-mentioned facts, it was contended that it would be unjust to disregard all the time and effort spent on the trial, due to the objection regarding the amendment of the plaint.

Another argument presented by the respondent, was that the property in dispute, forming the subject matter of the will made in 1914, does not fall within the category of “ancestral property”. They relied on several court decisions to support their claim that only those properties that are inherited from fathers or other male relations in the paternal line, can be deemed to be ancestral, as provided under the original Mitakshara text. The cases referred to were Karuppai Nachiar vs. Sankarnaryanan Chetty (1903), Bishwmath Prasad Sahu vs. Ganjadhar Prasad (1917) and Raja Chelikani Venkayyamma Garu vs. Raja Chelikani Venkataramanayyamma (1902). Therefore, since the property in question was the property that Ganesh Prasad received from his maternal grandfather, it cannot be treated as ancestral property. Consequently, he had full capacity to dispose of such property by way of a will in favor of his heirs.

Judgement of the case

The Privy Council held that the trial conducted on the additional cause of action, was legal and the High Court was right in allowing the amendment of the plaint, introducing a new cause of action. It was further held that since the property that was inherited by Ganesh Prasad was from his maternal grandfather, such property cannot be treated as ancestral property. Ancestral property is a property in which a son receives an interest by birth, along with his father, and only those properties that are inherited from fathers or other male relations in the paternal line can be deemed to be ancestral, as provided under the original Mitakshara text. Therefore, it cannot be held that Ganesh Prasad had no authority to dispose of the property. The will, which he prepared in favor of his daughter-in-law, Giri Bala, cannot be questioned by his son or any other person. When her husband died, the terms of his last will and testament came into force and vested in her all the ownership rights with respect to the village of Kalinjar Tirhati and the entire property. The sale of that village, in the execution proceedings against her husband, had no impact on her title. For these reasons, their Lordships confirmed the decision of the High Court and dismissed this appeal with costs. In order to understand the decision passed in this case, it is pertinent to look into an elaborate issue-wise judgement delivered by the Privy Council. 

Rationale behind the judgement

Whether the High Court’s decree should be overturned solely on the basis of a misjoinder

The Lordships referred to the contentions made by the appellant, wherein they argued that although Giri Bala could pursue the action to conclusions, based on her late husband’s cause of action, she could not frame an independent cause of action based on her own rights. They acknowledged the contention, but emphasised that the trial was done on the basis of the amended plaint containing both the original and new causes of action. It was further noted that both parties had already provided all the necessary evidence with regard to the two causes of action. By relying on such facts of the case, their Lordships concluded that it would be unjust to disregard all the time and effort spent on the trial, due to the objection regarding the amendment of the plaint. Referring to Section 99 of the CPC, the Court underlined the fact that no decree shall be reversed or substantially altered or any case remanded on appeal, by reason of misjoinder of parties or causes of action or any other irregularities concerning the procedure that do not affect the merits or the jurisdiction of the court.

It was further observed that the High Court in its decision had held that the trial of the suit on both causes of action was legal, and it was noted that the misjoinder in question did not affect the merit or the jurisdiction of the case. Thus, the question that was left to be answered was whether a decree of the High Court should be set aside because of the misjoinder of parties. While deciding upon this issue, their Lordships recognised that although the CPC did not regulate the procedures relating to appeals from India, the principle outlined under Section 99, was sound and promoted justice. Thus, it was held that the Lordships were not likely to pursue a cause of action that would prolong the case excessively. It was further held that even if the High Court was wrong in overruling the objection to the amendment and in allowing the trial on both the causes of action, the trial should not be set aside. The alleged amendment had neither affected the merit of the case, nor the jurisdiction of the court. 

Whether the will made in 1914 was valid and genuine

The Lordships observed that the decision for this particular issue depended on the factum and the genuineness of the will alleged to have been executed by Giri Bala’s father-in-law, Ganesh Prasad, on 5th April 1914, which was the foundation upon which her claim was based. It was pointed out that the original will had been lost and the content of the will was verified by two certified copies, the authenticity of which was not disputed.

With reference to the facts of the case leading to the execution of the will, as provided earlier in this article, it was affirmed that the initial will, made in 1914, was lost, therefore allowing the respondent to submit secondary evidence of the contents of the will. This evidence included two certified copies- one was obtained while the original was with the Collector and the other was obtained from the High Court. While the authenticity and accuracy of these copies could not be contested, they only corroborated the contents of the document alleged to have been signed by Ganesh Prasad on 5th April, 1914. However, it was emphasised that these copies did not prove that the original will for which such copies were made, was signed by the testator.

In order to determine the execution of the will and the authenticity of the certified copies of the will, their Lordships considered these in light of the evidence adduced by the respondents. Their Lordships, while declaring the genuineness of the will, based its decision on several key pieces of evidence. Firstly, the Privy Council relied upon the testimony of the scribe, Mahabir Prasad. He, in his evidence, corroborated the fact that he made a fair copy of the will and the same was read over to Ganesh Prasad, who put his signatures thereupon and his signature was attested by two witnesses. Although these witnesses were dead, the Deputy Collector who got the original will, had also recorded statements of these witnesses and was satisfied that it was a true copy.

Secondly, the certified copies of the will showed that the original document had two of the testators’ signatures, which were similar to the signatures of the testator on the original 1911 will. Additionally, several witnesses who saw the original document immediately after it was recovered, had no difficulty in recognizing both of the testator’s signatures on it. It was observed that some of the witnesses were the trustees under the 1911 will and there was no reason to question the credibility of their testimonies. It may be worthy to note that they mentioned in their application to the High Court on 12th October, 1914 that they knew Ganesh Prasad’s handwriting and were fully satisfied that the signatures on the 1914 will were genuine. The High Court judges rejected the assertion that the trustees had ulterior intent in accepting the validity of the will and therefore, their Lordships after considering all the available evidence, concurred with this conclusion. 

Lastly, Mr. Swan, the Collector of Banda, who was familiar with Ganesh Prasad’s handwriting, also recognized his signatures on the will of 1914 when the Deputy Collector sent it to him. He informed all the relevant parties about the recovery and authenticity of the document and advised them to act according to its provisions. Therefore, after reviewing the evidence, their Lordships concluded that there was no ground to discredit the motives of the trustees or the proof tendered and thus, accepted the authenticity of the will.

Whether Giri Bala had a valid right to the village in dispute

After determining the genuineness of the will, their Lordships moved forward to analysing the contents of the will, to decide whether Giri Bala had a valid right to the village in dispute. It was observed that the relationship between Ganesh Prasad and his son was strained and the same was evident and undisputed. It was because of this enmity, that Ganesh Prasad made the will in 1911, disinheriting his son and his family. However, when Ganesh Prasad fell ill, he likely reconsidered this stance and made a new will in 1914, to provide for his relatives and dependents. 

As per the contents of the will made in 1914, the testator granted a life interest to his son, in order to realise the income of the property, without enabling him to dispose of the property. The will further provided that upon the death of his son, the property would go to his son’s child and in the absence of such child, it would pass on to his wife. The 1914 will also provided for maintenance for Ganesh Prasad’s mistress, Jairaj Kuar.

Their Lordships found that the contents of the will were reasonable and noted that when the will was recovered from the deceased’s house in 1914, no one suggested that it was forged. Furthermore, those who had claimed that the 1914 will was forged during the pendency of this case, had not given any evidence in proof of such a claim, and therefore,  their Lordships agreed with the High Court, that the validity of the will should be upheld in favour of Giri Bala since she held a valid right to the village in dispute.

Whether the property provided under the will is ancestral and Ganesh Prasad’s son had an interest jointly with him

The Lordships of the Privy Council noted that Ganesh Prasad inherited the property under a deed of gift from his maternal grandfather, Jadu Ram. Therefore, the question that came up before the Privy Council was whether this property was considered ancestral, giving his son an interest in it by birth. It was mentioned that there exist different opinions of the Indian judiciary on this issue and they referred to cases such as Karuppai Nachiar vs. Sankarnaryanan Cketty (1903), Ham Partap And Ors. vs Jamna Prasad And Ors. (1907), and Bishwmath Prasad Sahu vs. Ganjadhar Prasad (1917), to support their observations. Acknowledging the practical relevance of this matter, their Lordships underlined that this question must not remain uncertain. 

It was noted, that according to the counsel representing the appellant, property, thus inherited by a daughter’s son, from his maternal grandfather, is ancestral property. He formulated his argument on the basis of the term “ancestral property”, as defined in the judgment of Raja Chelikani Venkayyamma Garu vs. Raja Chelikani Venkataramanayyamma (1902). In this case, the grandsons, who were the sons of a daughter, took property from their maternal grandfather and held it jointly with a right of survivorship. Their Lordships observed that the crucial legal issue in this case was whether the property was passed with the right of survivorship or without it. It was decided that the property was governed by the rule of survivorship and the widow’s contention was denied. They received the estate at the same time and by the same title and held it in the same way as the other joint property.  Their Lordships clarified that in this particular case, the meaning given to the term “ancestral property”, was the natural one, which signifies property inherited from an ancestor, and not the technical one, as provided under the Hindu laws, where a son receives an interest in it, by birth, together with his father. This particular matter was never argued in this case, nor was it decided by the Privy Council. 

It was further observed that the judgement delivered in a later case of  Atar Singh vs. Thakar Singh (1908), was relevant to the particular issue at hand. In this case, it was held that unless the property is inherited “by descent from a lineal male ancestor in the male line”, the property cannot be treated as ancestral property under Hindu law. However, this case was with reference to property that arrived from the male collateral and was not inherited from the maternal grandfather and was also in line with the customs of Punjab. It was also pointed out that it was not argued that the custom of Punjab was diverse from the Hindu law in relation to the matter that was presented before their Lordship in that case. 

According to the principles laid down under Hindu law, ancestral property means the property that is inherited by a man from his father, or father’s father, or father’s father’s father. It automatically devolves on his male descendants, by inheritance, and they take it as a coparcenary property, with the right of survivorship. However, the question under appeal in the present matter, is whether a son receives a similar interest in property inherited by the father from the father’s maternal grandfather.

Vijnanesvara, the author of Mitakshara, has restricted the rights by birth, to paternal or grand-paternal properties. Colebrooke translated the Mitakshara text and he defined “ancestral property” in the context of grand-paternal property and not maternal. It is pertinent to note here that Vijnanesvara’s use of the word “pitamaha”, which is the original Sanskrit term, exclusively means “father’s father” and does not include maternal male ancestors. Further chapters in Mitakshara, state that it is the paternal grandfather’s property, wherein a son receives a birthright interest, coextensive with the father. When Colebrooke used the term “ancestral estate”, what he was actually trying to refer to, was a grand-paternal estate. Therefore, the ancestral estate under Hindu law, wherein a son receives an interest by birth, only refers to the property that descends from the male ancestors through the male lineage. 

The term “ancestor” in its ordinary sense, encompassed the ascendants from both, the mother’s and the father’s side. However, under Hindu law, the “ancestral” property, wherein a son gets an interest by birth, along with his father, only refers to those properties that are inherited from fathers or other male relations in the paternal line, as provided under the original Mitakshara text. Their Lordships therefore concluded that confusion had stemmed from using the term “ancestral” in a general or literal sense. 

Therefore, with regard to the above-mentioned interpretation of the term “ancestral property”, their Lordships held that since the property that was inherited by Ganesh Prasad was from his maternal grandfather, such property cannot be treated as ancestral property. Hence, it cannot be held that Ganesh Prasad had no authority to dispose of the property. The will, which he prepared in favor of his daughter-in-law, Giri Bala, cannot be questioned by his son or anybody else. When her husband died, the terms of his last will and testament came into force and vested in her all the ownership rights in the village of Kalinjar Tirhati and the entire property. The sale of that village, in the execution proceedings against her husband, had no impact on her title.

Aftermath of the judgement

After the Privy Council had delivered its judgment in this case, it set a precedent that has been followed in numerous subsequent cases before various courts.

In the case of Dr. Muhd. Suhail vs. Chancellor, University of Allahabad and other (1994), the Allahabad High Court referred to this case of Muhammad Husain Khan vs. Babu Kishva Nandan Sahai (1937), in deciding the issue regarding the validity of the constitution of the selection committee and whether the irregularity in its constitution had any effect on the selection made by such committee under Section 66 of the Uttar Pradesh State University Act, 1973. The court observed that Section 66 of the Act had to be read along with Section 99 of the Code of Civil Procedure, as both the provisions are in pari materia (upon the same subject matter). It was in this context, that the court referred to the case of Muhammad Husain Khan vs. Babu Kishva Nandan Sahai (1937) and observed that the object of Section 99 of the Code of Civil Procedure, is that a mere defect or irregularities would not be a ground for reversing or varying a decree in appeal. In other words, this Section accepts a mere defect or irregularity, but does not vitiate material illegality.

In the case of CIT vs. Ram Rakshpal, Ashok Kumar (1968), the question before the Allahabad High Court was whether the income generated from the use of the property, that had come upon the son, after the death of the father, should be assessed as part of the income of a Hindu undivided family (HUF) or as separate property of the son. The court, while referring to the case of Muhammad Husain Khan vs. Babu Kishva Nandan Sahai (1937), reaffirmed the well-established rule of Hindu law, that property inherited by a man from any of the three direct antecedents in the paternal line, that is, father, grandfather, or great grandfather, is known as ancestral property for his male descendants. His son acquired a shared interest in this property from birth. This property is also held in coparcenary with his male heirs and the rule of survivorship applies to this property.

Conclusion

The case of Muhammad Husain Khan vs. Babu Kishva Nandan Sahai (1937) is relevant, as it resolved the confusion pertaining to the issue of what constituted ancestral property under the laws applicable to Hindus. The Privy Council in this case, for the purpose of conclusively deciding on this particular issue, analysed the translated text relating to the Mitakshara School of Law. After thorough analyses of the text, the Privy Council put rest to this confusion and held that ancestral property included only those properties that had been inherited from the male relation on the paternal side of the family. Consequently, any property that had been inherited from the male relations of the material side, was not an ancestral property and therefore, could be disposed of in the personal capacity by the one upon whom it has been bestowed. This is a key decision with respect to Hindu succession and inheritance laws.

Frequently Asked Questions (FAQs)

What is Section 99 of the Code of Civil Procedure, 1908?

According to Section 99 of the Code of Civil Procedure, a decree should not be reversed, varied, or remanded on the grounds of any error, defect, or irregularity in the proceedings of the case, if such error, defect, or irregularity does not affect the merits of the case or the jurisdiction of the court. This section strives to ensure that any procedural or formal issues do not override otherwise legal and proper decisions. However, as per the proviso to this Section, the provision of Section 99(1) does not apply if a necessary party is not included in the case. A necessary party is someone who should be included in the case because their presence is essential for resolving the controversy. Therefore, if any necessary party to the case is not included, it can be challenged or altered on the basis of the same. In a nutshell, the provision of Section 99, affirms that minor mistakes in the procedures do not affect the integrity of the judicial decision, while at the same time, ensuring that all the important parties participate in the case.

What is a will and which law is the execution of a will in India, governed under?

A will is a legal document that has been written and signed by a person to determine how their property and other assets should be disposed of after their death. In India, wills are legally binding. It is to be noted that they can be drafted in any format. They do not necessarily need to be drafted on stamp paper and may be typed or even handwritten. However, a handwritten will is often preferred, because it is less likely to be challenged in a court of law. Wills in India, are governed by the Indian Succession Act, 1925. Under the provisions of this Act, a will can be made by any person who is of sound mind and is not a minor.

What is the meaning of inheritance and which law in India deals with the inheritance of property among Hindus?

Inheritance can be described as a process whereby land, wealth, and homes are transferred from one generation to another, in order to retain the family ownership of such assets. The Hindu law of inheritance outlines the processes by which assets are transferred among Hindu families. In India, it is governed by the Hindu Succession Act, 1956. Section 2 of this Act outlines the applicability of the Act. It stipulates that the Act applies to anyone who follows Hinduism or its variation (including Virashaiva, Lingayat, Brahmo, Prarthna, or Arya Samaj), Buddhism, Sikhism, and Jainism. It extends to any person who is not a Muslim, Christian, Parsi, or Jew, unless such a person can establish that he is not bound by Hindu law or custom.

What is an ancestral property and how is it different from a self-acquired property?

The term “ancestor” in its ordinary sense, encompasses the ascendants from both, the mother’s and the father’s side. However, under Hindu law, with respect to the ancestral property where a son gets an interest by birth along with his father, only such properties that are inherited from fathers or other male relations in the paternal line are considered. On the other hand, self-acquired property is one that has been purchased by a person with his own means. There can exist a situation wherein a self-acquired property turns into an ancestral property and vice versa. A part of an ancestral property becomes self-acquired, if it is partitioned and distributed amongst the members of a joint Hindu family. On the other hand, a self-acquired property turns into ancestral property, when no partition takes place for successive generations..

What is a Hindu undivided family (HUF)?

A Hindu undivided family (HUF) is a different legal personality under Hindu law. It encompasses every direct descendant of a common ancestor and their wives. The HUF functions as one legal entity, with joint ownership of property and a common source of income.

What is the meaning of coparcener and who is the coparcener as per Hindu law?

Under the Indian law governing property, a coparcener refers to a person who has a right to ancestral property from the moment of their birth. Earlier, such rights were only granted to male members of the Hindu undivided family. However, with the Hindu Succession (Amendment) Act, 2005, daughters were given the same property rights as coparceners. Now, men, as well as women HUF members, can be coparceners. 

How did a coparcener’s status change under Hindu law?

A significant change in the rights of coparceners in Hindu undivided families (HUFs), was introduced by the Hindu Succession (Amendment) Act, 2005. Earlier, the rule was that only the sons would have the rights of coparceners, and daughters were deprived of their right to receive ancestral property by birthright. This amendment has effectively responded to and redressed this historical gender bias, in favour of daughters, by giving them the same rights as a coparcener. With this amendment, daughters whether married or unmarried, were given the same legal rights to ancestral property, as sons. They are recognized as coparceners by birth, which allows them to exercise their rights over the family’s ancestral property. This significant change ensures a more inclusive and equitable legal framework within HUFs, aligning with modern principles of gender justice and equality. In order to effectively deal with any HUF, it becomes necessary to have an adequate understanding of the concept related to coparceners or their legal status and rights. During the partition of property in a coparcenary, the legal systems provide a framework for the manner in which the share is to be distributed among the coparceners, such that every person who is entitled to it, receives an equal share. The changes initiated by the Hindu Succession (Amendment) Act, 2005 can be seen as a progressive move towards gender equality. By granting the same property rights to daughters, as sons, the amendment helps to achieve a much more fair and balanced approach towards representation within the coparcenary system. This progressive legal change not only empowers women but also makes joint family systems stronger, by ensuring justice in the distribution of ancestral property.

References

• https://www.thehindu.com/news/national/the-hindu-explains-what-is-coparcenary-property-in-hindu-law/article32364484.ece
• https://www.mondaq.com/india/wills-intestacy-estate-planning/1294574/wills-in-india-inheritance-laws-in-india-for-wills

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