This article is written by Rohit Jain.

Coparcenary under Mitakshara school: the initial concept

The concept of coparcenary is a narrower spate of persons within a Joint Family.  The notion of coparcenary owes its geneses to the concept of Daya i.e. a property which was explicated by Vijnanshwara while commenting on Yajnavalkyasmriti. The word ‘coparcenary’ has not been defined anywhere throughout the Hindu Succession Act, it literally means ‘to share equally with others’. It basically comprises of Father and his three lineal male successors or descendants. In simple words, it includes the person himself, and his son, son’s son, and the son’s son’s sons from the time of their birth. Thus a coparcenary can embrace the Grandfather and Grandsons, of brothers, of uncles and nephew, and so on. It is an established rule that, as long as a person is not removed from four degrees starting from the common ancestor he is a part of the coparcenary. But if one is detached by more than four generation he will not be deemed to be a coparcener.  

Position of females prior to 2005

The Hindu Succession Act, 1956 is comprehensive legislation that lays down uniform rules of succession among Hindus. This act codified the laws relating to intestate succession, testamentary succession, and the classic concept of the coparcenary. It is pertinent to note here that, apart from Section 30 of the act, all the provisions deals with intestate succession. Section 30 is the only provision throughout the act which deals with testamentary succession. 

This act, through Section 6, changed the fundamental notion of coparcenary, by entitling the daughters to claim a share upon partition, and also by authorising the wife to get a share equal to that of her son, and enjoy the same independently. The provisos appended to Section 6 and 8 also provided, to a reasonable extent, rights to the female correlative of a Hindu to succeed the rights in any property, upon the death of such relative. Further, Section 14 of the Act changed the concept of limited ownership of the property to absolute ownership and gave the females absolute rights on all the property inherited by them before or after the commencement of the act. Moreover, the act brought an important change by reducing the applicability of the role of survivorship and enhancing the principle of succession. 

This act to some degree recognized the rights of a female in certain matters relating to a property, but even after that the rights of female Hindu were very limited, the daughters were yet not treated at par with the sons. Prior to the amendment of 2005, the position of females as a coparcener was very different. The main drawback of the 1956’s Act was that it failed to recognise the rights of a female as a coparcener, and nor did it gave them the right to demand partition. Though Section 6 of the Act, entitled the daughters to claim a share upon partition, but yet they were not independently included in the concept of the coparcenary and were entitled to a share in her father’s property only. Section 23 of the act clearly provided that female Hindu cannot claim partition of a dwelling house until the male heir chooses to separate. Moreover, a daughter is entitled to stay in the Joint Family’s dwelling-house only if she is unmarried, ones a daughter gets married her right to stay in the Joint Family Property expires. 

The 174th report of the Law Commission (See Here)

As we have already seen, in the preceding section of the esay, that under the Hindu Succession Act of 1956 the Female Hindus, in particular the daughters, were not given any independent rights, and had very limited rights in respect of the Joint Family Property. These facts, to a certain extent, led to gender discrimination as the daughters were not treated at par with the sons and were left out of her right to enjoy the coparcenary property and was therefore violative to their Fundamental Right of Equality.  Keeping this distinction with females in mind, The Law Commission of India submitted its 174th Report titled “Property Rights of Women: Proposed Reforms under the Hindu Law”. This Report largely focused on Women’s Rights and recommended to put them on par with Males. By this report the Law Commission mainly suggested two major changes in the Hindu Succession Act: Firstly, To advance the status of Daughters as a coparcener, Secondly, To completely abolish Section 23 of the Act.

Position of female after the enactment of Hindu Succession Act, 2005

Social Justice demands that the women should be treated equally both in economic and social spheres. Premised on the recommendations of the 174th Law Commission Report, 2000, the Parliament of India passed the Hindu Succession (Amendment) Act, 2005. The introduction of this act in itself is a historic step taken by the parliament as it removed the gender inequalities under the Hindu Laws in the matter of inheritance and succession. This amendment kept back the concept of the Joint Family and included the Daughters under the notion of Coparcenary and gave them the same rights at par with the sons. Apart from these primary amendments, the act also put an end to the Doctrine of Survivorship and established the Principle of Succession (Section 6 of the New Act). The Act substituted the old Section 6 of the 1956 Act, with a new one which provided the daughters with equal rights as that of a son. Further, Section 23 of the 1956 Act, which prohibited the married daughters from staying in the Joint Family’s Dwelling house, was completely abolished. Before this amendment, once a daughter gets married, she seizes to be a member of her father’s Joint Family, and was therefore not entitled to succeed any Joint Family property. But after the amendment, every daughter, whether married or unmarried, is entitled to succeed the Joint Family property and have the same rights and liabilities as that of a son. 

Survivorship v. successorship

As per old Section 6 of the Hindu Succession Act, 1956, whenever a male Hindu, who has an interest in the Mitakshara Joint Family Property, dies his interest shall devolve by survivorship to the surviving coparceners. So according to the old Section 6 of the Hindu Succession Act, 1956 (HSA) the joint family property of a Mitakshara coparcenary shall devolve on to the surviving partners and not the successors of the deceased coparcener. But this general Rule of Survivorship was repealed by the parliament in 2005 by amending the HSA and substituting the old section 6 with a new one. As per the new section 6 of the HSA, the Mitakshara Joint Family Property shall be succeeded by the surviving legal heirs of the deceased. 

Let’s understand this concept with an illustration. Say, A is a Father had two sons ‘S1’ and ‘S2’, ‘S1’ further has two sons ‘X’ and ‘Y’. Now if S1 dies, before 9th September 2005, leaving behind his two sons X and Y; his property shall devolve by the Rule of Survivorship to S2 as he is the sole survivor and his sons X and Y will get nothing. However, this rule of Survivorship has been changed by the 2005 amendment. Now, according to the new Section 6 of the HSA, if S1 would have died after 9th September 2005, this property would have been inherited by his legal heirs S and Y by the Rule of Succession. So, as per the new section 6 of the HSA, it is now a well-established principle under the Mitakshara School of Hindu Law the Joint Family Property shall devolve by the rule of Successorship to the surviving heirs of the deceased and thus completely abolishing the Rule of Survivorship.

Judicial interpretation on the effects of the 2005’s amendment

After the substitution of the new Section 6 under the Hindu Succession Act, 2005 there can be no dispute regarding the applicability of this amendment on daughters born after 9 September 2005. But after the amendment a new question aroused before the courts, that whether this amendment is applicable to (i) the daughters born before 2005 but after 1956 and (ii) daughters born prior to 1956. Thus, due to this confusion the new Section 6 of the Hindu Succession Act, 2005 had always been a subject of changing Judicial Perspective. Here are some of the landmark cases delivered by the courts from time to time for determining the true effect of the Amendment Act of 2005.

• Pushpalatha N V vs. V Padma AIR 2010 Kar 124 (See Here)

In this case, a full bench of Karnataka High Court decided whether the amendment of Section 6 of The Hindu Succession Act was prospective or retrospective in nature. The Court took into consideration the entire history of Succession under the Hindus and was of the view that there was discrimination among the Hindus which was administered by the legislature while enacting the law. The Court applied the mischief rule of interpretation and held that Section 6 of the HSA is retrospective in nature and a daughter by birth becomes a member of a coparcenary. Though having a retrospective effect, it is important that the property must be joint in nature, if the partition had already taken place the ratio of this case will not be applicable. The Court also held that the provisions of alienation, partition and transfer shall remain undisturbed, to avoid the multiplicity of cases.

• Ganduri Koteshwaramma vs.  Chakiri Yanadi 2012 SC 169 (See Here)

In 2012 an appeal was filed before the Supreme Court against the decision of the Andhra Pradesh High Court, wherein the apex court again gave a distinct judgment. The Supreme Court in this case, held that the new section 6 of the HSA, 2005 provides equality among the males and females in the matter of coparcenary property. The court stated that a daughter of a coparcener becomes the coparcener by birth itself and has the same rights as that of a son. The court interpreted the word ‘substitution‘ and stated that when a law is substituted it is deemed to be inserted from the day of its enactment. And thus it was held that it right is available to the daughter even if she was born prior to 9th September 2005 provided she must be alive in 2005.

• Shri Badrinarayan Shankar Bhandari vs. Ompraskash Shankar Bhandari AIR 2014 Bom 908 (See Here)

In this case, a full bench of the Bombay High Court came to the conclusion that the new section 6 of HSA, 2005 is neither prospective nor retrospective but is rather retroactive in nature i.e it operates forward but it is not into operation before it was enacted. So as per the judgment all the daughters’ weather born on or before 9th September 2005 are entitled to the coparcenary property provided that both the daughter and the father must be alive in 2005. Therefore if the daughter had died before 2005 legal heirs cannot retrospectively claim the benefits in the property after the 2005 amendment. 

While carving out the decision, the court in this case also held that a Prospective Statute is one that operates from the date of its passing, conferring new rights. A Retrospective Statute sets off backward or in reverse and takes away all the rights obtained under the existing law. And a Retroactive statute is one which does not operate retrospectively, but rather operates in futuro, which means that it operates forward but its operation is not functioning before its enactment.    

• Prakash vs. Phulavati AIR 2015 SC (See Here)

In 2015, the SC again gave a distinct judgment. The court in this case did not looked at the historical background of succession among Hindus and the concept of coparcenary and delivered the judgment just by referring the plain meaning of section 6 of the HSA. The court stated that the plain reading of the act suggests us that the daughter is entitled to coparcenary property ‘on and from commencement of this act‘. So in this case it was held that benefit of section 6 are available to the daughter, only when both the daughter and father alive in 2005. This judgment did not stood the concept of coparcenary as a coparcener acquires rights in the property by birth itself. However the court in this case made it clear that the applicability of the act is prospective in its applicability.

• Danamma v Amar Singh AIR 2018 SC 721 (See Here)

The court in this case extensively focused on the concept of coparcenary and held that the coparcenary is an inherent right by birth itself and there is no condition attached to it. The court stated that the word ‘on and from the commencement of the act‘ is just a date from which the court recognizes the rights of the daughter. And thus, daughters are entitled to inherit the coparcenary property by birth irrespective of whether they were born before or after 2005. But in the same judgment (under para 23-24), the court also stated that the principle laid and Prakash versus Phulavati is also a binding principle. And that’s the point where the confusion again arises, that which judgment is to be followed, and whether section 6 is prospective or retrospective nature.

• Mangammal vs. T.B. Raju AIR 2018 SC (See Here)

In 2018 the apex court again gave a distinct judgment. In this case, the Court believed that the amendment is prospective in nature. But while the shares of the daughter in partition the court applied retrospective applicability. So this judgment again created confusion.

Vineeta Sharma vs. Rakesh Sharma AIR 2020 SC

On 11th August 2020, a three judge bench of the Apex court, headed by Retd. Justice Arun Mishra, settled this long controversial conflict regarding the applicability of Section 6 of the HSA, 2005 with respect to the Daughters. This is a 122 page judgment, and undeniably not the easiest to read, which can certainly be deemed as an important and a progressive one. This judgment asserted the rights of the daughters in the coparcenary property. This section of the article tries to unpack this landmark judgment of the Apex Court.

Questions Raised

One of the questions in this case, for instance, was that after the amendment of Hindu Succession act in 2005 can a daughter be asserted with all those rights, as mentioned in the New Section 6 of the HSA, 2005, even if the partition had already happened before 2005. Another question before the court in this case was that weather it was necessary for the father of a daughter to be alive in 2005, for authorizing the daughter to claim her rights in the coparcenary property. 

Judgment

This judgment is primarily based on the premise that the New Section 6 as amended in 2005, neither gives out its advantages to a daughter prospectively nor for that matter retrospectively, but rather operates retroactively (See Para 53). Legislation operates retroactively when it prescribes certain conditions preceded to claim the benefits of such law. The court while examining the applicability of the said provisions held that the daughters are entitled, at par with sons, equal rights in the coparcenary property by birth. And, since the daughter acquires the status in coparcenary property by birth her right to claim a share under Section 6 of the HSA, 2005 is independent of a notional partition, and thus, accordingly a daughter is entitled to the coparcenary property irrespective of the fact that whether her father was alive or not in September 2005. However all the alienations and partitions which have already taken place prior to this judgment remains undisturbed.

The court in the case extensively focused on every single aspect relating to the concept of coparcenary including the Historical Background of the Hindu Succession Act and also referred the Judgment of Danamma’s and Phulawati’s case.  The bench also upheld the judgement given in the Danamma’s Case and said that it is a good law, though it removed the discussion of Prakash vs. Phulawati from that judgment.  

Analysis

This judgment perceived the real object, intent and the spirit of the 2005’s amendment of the Hindu Succession Act. By this judgment, the Supreme Court has paved the way and has cleared the last barrier regarding the confusion relating to the rights of daughters in coparcenary property and also had decreased the onus on the subordinate courts to be the proponent of change. Though this is a landmark judgment and had forwarded the rights of the women in coparcenary property, it is pertinent to note that the applicability of this judgment is limited to Joint Hindu Property only and does not affect the provisions relating to the separate or the self-acquired property of her father. So there is yet a lot to be done with this judgment, for helping a daughter to acquire her real wealth. Yet, this decision seems to be a giant leap towards equality and upliftment of women’s rights, as it has placed the daughters at par with the sons and has accorded them equal coparcenary rights in their father’s property. 

References

• DF Mulla, Principles of Hindu Law, (21st Edition, 2013)
• M.P. Jain, Indian Constitutional Law, (8th Edition, 2018) 
• Nishant Kumar. Female Hindus as a coparcener after: The Hindu succession (Amendment) Act, 2005, International Journal of Law, Volume 4; Issue 3; May 2018
• Vijender Kumar and Vidhi Singh, Extinguishing Hindu Joint Family and Mitakshara Coparcenary: A Critique, NLU Nagpur Contemporary Law and Policy Review, Volume I Issue I, 2018

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