Webology (ISSN: 1735-188X)
Volume 18, Number 6, 2021
Relevancy Of Coparcenary In Hindu Law At
Present Time
Dr. Amit Kumar Srivastava
Dy. Dean Faculty of Legal Studies Mewar University Chittorgarh, Rajasthan.
Abstract:
"Boys are sons till they marry, while daughters will always be daughters." The Supreme Court
used these phrases to resolve the issue of coparcenary rights in Vineeta Sharma vs. Rajesh Sharma1
(Supreme Court of India, 2021). The Indian judiciary entered the principality of gender equality
also, considering a case of coparcenary rights, upholding women's rights and bursting all social
categorizes.
Rendering to Black's Law Dictionary, coparceners are "persons to whom an estate of inheritance
passes jointly and by whom it is held as a whole estate." The term coparcenary is used to describe
Hindu succession law. As per the definition, an heir is "a person who, by birth, has the capacity to
assume a legal interest in his ancestral property." It stands for 'unity of title, ownership, and
awareness.' It is a legal invention; parties acting together cannot make it unless they adopt it.
Coparcenary Rights have a long history in India, and they have a bright future ahead of them. This
paper examines the evolution and current situation of coparcenary rights in India under Hindu
Vedic laws and the Hindu Succession Act. In this study, Indian judiciary's approach toward
situations involving these rights is also explored.
Keywords: - Coparcenary rights, Hindu Law, The Mitakshara School, Hindu Succession
Amendment Act of 2005
Introduction:
1
Supreme Court of India. (2021, August). [Link]. Retrieved from [Link]:
[Link]
635 [Link]
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Coparcenary is derived from the theory of Daya, or property, in place specified by Vijnaneshwara
while mentioning on Yajnavalkyasmriti in the 'Daya vibhaga prakranam vayavahara adhaya'.
Property which transfers to another individual only because of the owner's relationship is referred
to as daya. The phrase simply for purpose of relative excludes any other motive, for example
purchasing. Rendering to Narada, sons be able to share their father's property that has been
sanctioned by the learned, hence the Daya is a coparcenary property. As a result, ancient Hindu
jurisprudence gave birth to the novel concept of coparcenary, which far along come to be a central
feature of Hindu law in overall and the Mitakshara School of Hindu law in specific. To understand
coparcenary rights, you must first recognize the subsequent:
Hindu Schools of Law
Hindu law, which has been codified, establishes a set of universal regulations for Hindus
throughout society. These schools are not permitted to be used under these laws. They are only
useful in areas where there is no classified law.
A) The Mitakshara School
In this area, the inheritance law was applied as per the concept of propinquity, that is proximity in
order of family connections. The Hindu Succession Act of 19562 (Ministry of Law, 1956) was also
created on this judgment. The rule of possession by birth applied to property distribution, that
means the family's male child had special rights to the joint family's property by birth, but female
child did not. This allocation rule remained recognized as the doctrine of survivorship. This one
essentially intended as the land should be transferred to the successor who could assure family's
future continued existence, effectively forfeiting daughter's rights under the Indian family system.
B) The Dayabhaga School3 (Agrawal, 2021)
This is known as the revolutionary branch of the Benaras School. Benaras has traditionally served
as epicentre for Brahmin conservatism as well for orthodoxy, as well as the seal of Brahmana
wisdom. This is also situated in Bengal and Assam.
This is based on the idea of religious value or spiritual value. Individuals that supply additional
spiritual value are allowed to take over the property over others who provide a smaller amount of
spiritual value, according to the Doctrine of Oblations. An early advantage of this fresh philosophy
was the addition of various associated in the list of successors, which had previously been ignored
by the Mitakshara school, that was primarily agnatic. As property may also descend to the family's
female members. As this school, boys do not have a right to the property because they were born
2
Ministry of Law. (1956). The Hindu Succession Act, 1956. New Delhi: Ministry of Law.
3
Agrawal, S. (2021, August 11). [Link]. Retrieved from
[Link]
[Link]
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there. If the coparcener dies without children, his widow is entitled to receive his share and divide
it on her own.
2) Hindu Undivided Family
Lineal children of a common ancestor, also the wives and unmarried daughters, make up the Hindu
undivided family. An undivided Hindu family is one in which all of the family's assets are owned
in common. The family is no longer undivided after assets are divided. A simple division between
eating and worship is not considered a division. Prior to the Hindu succession statute of 1956, there
were restrictions governing coparcenary privileges that were not based on Hindu theology. Prior
to this law, women's inheritance rights were governed by the Hindu Law of Inheritance Act of
1929. This granted his son's daughter, grandson, and sister the right to inherit.
The Hindu Women's Right to Property Act, 19374 (Gazatte of India, 1935) was passed shortly
after, granting women ownership rights. The types of expected laws believed in use the time has
changed dramatically as a result of this rule. Property, inheritance, and adoption laws, as well as
coparcenary and division rules, were all impacted. It also addressed the rights of widows and
divorcees. Earlier to the introduction of law, inheritance was governed mostly by customary or
shastric laws, which brazenly disregarded gender equality. The idea of survivorship was struck a
severe blow by this 1937 decree, which preserved the rights of widows and daughters. According
to statute, the widow of a late coparcener of a Mitakshara undivided family was entitled to the
equal interest as her husband while he stayed alive. The power to demand partition was also
provided to a widow.
After that, the Hindu Succession Act, 19565 (Ministry of Law, 1956) was passed. The act
reaffirmed the idea of equality by removing a Hindu Women's Right to Property Act's concept as
"limited estate." similarly provided women the right to a share of their father's estate. Daughters
were acknowledged as legal heirs to their fathers and were given inheritance civil rights to a share
to the father's separate property. In some ways, though, this behaviour exacerbated the disparity.
The boy was nonetheless legally entitled to inherit the family's ancestral property, which a daughter
had no claim to. As a result, the survivorship doctrine was upheld. In a study issued in 2000, the
law commission proposed revisions to the women's right to property as a result of these faults in
the legislation. Based on the principle of injustice, it campaigned for reforms in all sectors. The
Hindu Succession Amendment Act of 2005 was passed after these amendments were adopted. The
Amendment Act of 2005 asserted the purposes and details that the law led to gender discernment,
harassment, and denial of daughter's fundamental right to equality. This has taken into
consideration while Section 6 amended. As Section 6 of the amendment confronted Hindu law's
in equal coparcenary rights and as a result, all of family's daughters, whether married or unmarried,
were granted coparcenary rights with all of rights, responsibilities of the son. That means the
4
Gazatte of India. (1935). Hindu Women's Right to Property Act, 1937. New Delhi: Governor Of India.
5
Ministry of Law. (1956). The Hindu Succession Act, 1956. New Delhi: Ministry of Law.
637 [Link]
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daughter can be responsible for the duties and fatalities in addition to the property shares and other
moralities. As stated, women of family may now perform as the family's Karta, that they were
unable to do previously. Some place to a coparcener too applies to daughters.
Discussion on Hindu Succession Amendment Act, 20056 (Ministry of Law, 2005)
While essential components of Hindu Joint Family concept were altered by the 1956 Act and the
2005 Amendment, the coparcenary concept was preserved in the superstructure. The coparcenary
and the Hindu undivided family were traditionally patriarchal, which meant that the women of the
household were fully excluded. The daughter and her lineal descendants were never involved;
instead, sons, grandsons, and great-grandsons were always involved. This situation was changed
by the Hindu Code Bill and the 2005 Amendment.
Despite the fact that the B N Rau Committee's Hindu Code Bill aimed to eliminate Mitakshara
Coparcenary and replace it with the concept of Dayabhaga, Mitakshara Coparcenary was included
in the Hindu Succession Act of 1956, albeit in a greatly reduced form. The rule of survivorship
was weakened by the addition of a proviso that a coparcener's curiosity in a Mitakshara
Coparcenary intend to only transfer down to other coparceners if he is not survived by a female
family member listed in Class I of Schedule I, or a male family member listed in that Discussion
who claims over such female family member.
1956 Act, in contrast to the Mitakshara stance of the time, which prioritised the Hindu Joint Family
system over the welfare of the coparcener's biological kin, prioritised the latter. The 2005
Amendment Act made history by making the coparcener's daughter, as well as the coparcener's
son, coparceners. It defied popular belief that a woman could never be a coparcener or the Karta
of a mixed household. The Amendment Act totally eliminates the concept of survivorship
devolution of curiosity in a coparcenary property. Births in HUF will continue to lower a
coparcener's interest, but deaths in the undivided family will not. A Hindu undivided family that
happened at the time the Amendment Act was implemented resolve gradually degenerate,
disintegrate, also by natural death of all surviving coparceners or through a partition based on a
coparcener's request.
It is important to note, however, that the Amendment Act does not completely eradicate the
concept of Coparcenary. The partitioned coparceners may establish a new coparcenary on the
partition of an existing coparcenary with their sons and daughters. Following the division of a
coparcenary property, each of the partitioned coparceners will form their own coparcenaries with
their children, daughters, grandsons, and great grandsons. A new coparcenary can also be formed
by the deliberate pooling of several properties owned by a person, his sons and daughters, and
enjoyed by the coparcenary members collectively.
6
Ministry of Law. (2005). Hindu Succession Amendment Act, 2005 . New Delhi: Authority.
638 [Link]
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Some Anomalies Still Persist7 (Kumar, 2008-09)
1. One initiates from the Mitaksara joint property structure's existance.
Creating female member coparceners will reduce the portions of other Class I female heirs, such
as the mother and deceased's widow, as the coparcenary share of the departed male since whom
they receive will drip. The widow's latent share at present equivalent to son's & daughter's few
states similar to Maharashtra, everyplace the wife gets a piece of partition. The widow's probable
portion will be lesser than daughter's in places as if in Tamil Nadu or Andhra Pradesh the wife
does not get a quota at the stretch of partition.
2. Men's main entitlement remains co-parcenary.
As law, no hesitation, provides for an equivalent division of the men’s stake parcener's estate
between every male and female heirs; however, as law places male heirs on a upper stability by
giving them inherit an excess share in co-parcenary property other than what is inherited similarly
with female heirs; the idea of co-parcenary is that of an special male membership club, and thus
must be eradicated.
Any elimination, however, would want to attended as a restriction on the right to will (say, to 1/3
of the property). Similar limitations exist as a number of European countries. Females are
frequently disinherited by wills, leaving them with nothing. Possession of Mitaksara system at a
place & making daughters coparceners, where not ideal, does offer women with assured
involvement in combined family property as the 2005 Act not prepares limit testamentary liberty.
3. As a Hindu woman dies without a will, her property passes initial to her husband's heirs, next
to her husband's father's heirs, and lastly to her mother's heirs; as a result, the without a will Hindu
woman's property is still encumbered by her husband's lien.
One more purpose for an all-India rule is that, a United Family holds property in two situations,
one of that is governed by the Amending Act and the next not, the consequence might be dual
Kartas, out of which one is a daughter and the next is son. Here also be worries with the regional
solicitation of the Amending Act. As a result, the requirement of an all-India Act or a Uniform
Civil Code has grown increasingly urgent. The problematic process of applying the 2005 Act
continues. Legal literacy movements, hard work to create social consciousness of the welfares of
women possessing property for the whole family, and lawful and communal assistance for women
seeking to declare their privileges are just a rare of the many stages are essential to put the Act's
amendments into effect.
Current scenario: The judicial judgement that made a mark
7
Kumar, P. V. (2008-09). Coparcenary under Hindu Law, Boundaries redefined, published in Nalsar Law Review,
2008-09. Constituent Assembly (Legislative) Debates.
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Despite fact that women's rights have been recognised since the 2005 amendment, there have been
a number of issues that have raised questions regarding the amendment's compliance with
daughters' rights. One such concern was whether the daughter's father had to be alive at the time
of the 2005 change in order for her to get the benefit. This matter was elevated in the case of
Prakash vs. Phulavati8 (Goel, 2015). The Supreme Court stated in this case, "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, meaning that the right to coparcenary
property would be available only to 'living daughters' of 'living coparceners' on and from the
commencement of the amendment." Here no clear provision for alteration to be made retroactively,
nor is it necessary." The court reaffirmed this position in Mangammal vs. T.B Raju9 (Agrawal R.
K., 2018). Such a reading observed that have no understanding of concept of modification. The
clause was designed to offer females with coparcenary and equal rights to males, according to the
evidence. If the focus is placed on the phrases employed in the section, it could have understood
that coparcener must be active for this conferment, because provision the aforementioned indicates
that sons and daughters have equal rights. The courts are erroneous in erecting a barrier by reading
terms as "daughter of a coparcener" to suggest that coparcener must be active for daughter to seek
her coparcener privileges. The entire goal of the amendment, which was predicated on Article 14
of the Constitution's equality clause, is thus defeated.
In Danamma v. Amar10 (A Sikri, 2018), the Supreme Court completed comments that contradicted
earlier circumstances. The culminated in the Vineeta Sharma decision, which was referred to a
three-judge panel. The Supreme Court bluntly rejected any possibility of the amendment having
retroactive effect in these instances. A similar issue with the retrospective effect was addressed in
Vineeta Sharma vs. Rajesh Sharma11 (Supreme Court of India, 2021). Following the representation
of the Hindu Succession (Amendment) Act, 200512, as question in this case was whether a
coparcener's female member would automatically convert into a coparcener in her individual right,
exactly like son. After this instance, court stated that "the provisions included in substituted Section
6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or
after amendment in the same manner as the son, with the same rights and obligations." With
exclusions set forth in Section 6(1), the privileges can be demanded by the daughter who was born
earlier as of September 9, 2005. The father coparcener doesn’t have to be active as of September
9, 2005, as the privileges to coparcenary is based on birth."
The Vineeta Sharma judgement is founded based on assumption with aim of Section 6 of the Act,
as amended by the 2005 amendment, to provide benefits to female member successors
8
Goel, A. K. (2015). Prakash vs. Phulavati. New Delhi: Supreme Court of India.
9
Agrawal, R. K. (2018). Mangammal vs. T.B Raju. New Delhi: Supreme Court of India.
10
Sikri. (2018). Danamma v. Amar. New Delhi: Supreme Court of India.
11
Supreme Court of India. (2021, August). [Link]. Retrieved from [Link]:
[Link]
12
Ministry of Law. (2005). Hindu Succession Amendment Act, 2005 . New Delhi: Authority.
640 [Link]
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retroactively, rather than proactively or retrospectively. When a law makes benefits conditional on
eligibility, it takes effect retroactively, even though the eligibility existed before the law was
enacted. When it comes to the 2005 amendment, it was defined as providing female successors
with the same benefit of succession as their male counterparts depended on an antecedent
occurrence, namely her birth. While the Vineeta Sharma decision is to be applauded for achieving
gender equality, the fact was, it acquired over fifteen years to resolve the case demonstrates the
long path to justice. Numerous women have been missing without compensation for their roles in
the coparcenary property throughout the years, putting them in considerable financial problems.
Conclusion
Many advancements have happened as field of coparcenary rights, letting women for fulfil their
full potential. Numerous legislative statutes connecting to coparcenary rights enacted, with the
Hindu Succession (Amendment) Act of 2005 being the furthermost important in relations to
inheritance and succession. This act addressed a fundamental concern concerning gender
imbalance to some extent. However, as previously said, there were a few thorny issues that were
handled differently depending on the situation. On the other side, the Vineeta Sharma verdict has
been regarded as a landmark moment because it not only explained the situation but also upheld
the constitutional equality values. While some issues remain to be resolved, such as Class I female
heirs' shares, male heirs' higher standing, and partial restrictions on the right to make a will, this
decision deserves praise for breaking down long-held gender stereotypes in inheritance and the
ambiguity that existed after the 2005 amendment, and deciding on a matter that resolves many
conflicts in a just manner.
References
• A Sikri. (2018). Danamma v. Amar. New Delhi: Supreme Court of India.
• Agrawal, R. K. (2018). Mangammal vs. T.B Raju. New Delhi: Supreme Court of India.
• Agrawal, S. (2021, August 11). [Link]. Retrieved from
[Link]
[Link]
• Gazatte of India. (1935). Hindu Women's Right to Property Act, 1937. New Delhi: Governor
Of India.
• Goel, A. K. (2015). Prakash vs. Phulavati. New Delhi: Supreme Court of India.
• Kumar, P. V. (2008-09). Coparcenary under Hindu Law, Boundaries redefined, published in
Nalsar Law Review, 2008-09. Constituent Assembly (Legislative) Debates.
• Ministry of Law. (1956). The Hindu Succession Act, 1956. New Delhi: Ministry of Law.
• Ministry of Law. (2005). Hindu Succession Amendment Act, 2005 . New Delhi: Authority.
• Supreme Court of India. (2021, August). [Link]. Retrieved from [Link]:
[Link]
• [Link]
641 [Link]
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Volume 18, Number 6, 2021
• [Link]
[Link]#.UsmFJ9IW0ZM
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• Text books: Modern Hindu Law – Paras Diwan
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