coparcenary, mitakshara, HINDU SUCCESSION (AMENDMENT) ACT, 2005
Concept Of Coparcenary
In the Hindu social system, Dharmasastras do not separate the spiritual from the secular, therefore, in the grasthasrama a person is given the training to lead a complete and meaningful life for the benefit and welfare of those who left and those who are present and those who will be born. It is a unique phenomenon of Hindu philosophy that the Hindu family has been thought of as one of the most important institutions because all other institutions like brahmacharya, vanaprastha, and sannyasa depend on it. Hence, the importance of the family is advocated in the Dharmasastras.
Coparcenary & Hindu Law
The coparcenary as understood in Hindu law has its origin in the concept of Daya as explained by Vijnaneshwara while commenting on Yajnavalkyasmriti in the Daya vibhaga prakranam vayavahara adhaya. Here, Vijnaneshwara discussed that Daya is only that property which becomes the property of another person, solely by reason of relation to the owner. The words solely by reason of relation exclude any other cause, such as purchase or the like.
Narada also approves the meaning of the Daya which is a coparcenary property because according to him, sons can divide only father’s property which has been approved by the learned (Svatvanimitasambandhopalashanam).
Therefore, 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 different meanings in India or the Hindu legal system. In English law, coparcenary is the creation of acts 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. The coparcenary in Hindu law was limited only to male members who descended from the same male ancestors within three degrees.
These coparceners have important rights as regards the property of the coparcenary but so long the coparcenary remains intact no member can claim any specific interest in any part of the property of the coparcenary because of the specific nature of coparcenary is the Mitakshara School of Hindu law.
However, under Hindu law, the coparcenary in the Mitakshara and the Dayabhaga Schools of Hindu law has different meanings with the result that this difference in the concepts of coparcenary of the Mitakshara and the Dayabhaga Schools of Hindu Law resulted in the difference of definition of partition and the duty of the son to pay the debt of his father. Therefore, the deviation in the original concept of coparcenary is the result of social and proprietary influence.
coparcenary, mitakshara, HINDU SUCCESSION (AMENDMENT) ACT, 2005
Hence, when females are made entitled to become coparceners it does not militate against the nature and concept of coparcenary because it is the social and proprietary aspect which prominently makes it necessary that females should be included in the concept of the coparcenary. However, the term Apatya (child) is a coparcener because according to Nirukta, Apatya means child which includes both son and daughter. Therefore, when a female is made a coparcener, it is only the recognition of the meaning of the child in its true sense without making any distinction between a son and a daughter.
Now, a question that may arise in the case of a daughter is how the coparcenary interest will be determined at the time of her marriage. In fact, it would pose no problem because the male members of a coparcenary can determine the coparcenary interest any time at their will so why should there be any difficulty in the case of daughters.
In fact, the main emphasis is on granting the proprietary rights to female children equal to the proprietary rights of male children. Therefore, the marriage of a daughter may or may not have any impact on the proprietary interest rather it will depend upon the will of the female herself.
The division of property of a coparcenary will depend on the nature of the property whether the property which is in the hands of the coparceners is ancestral property or it is the self-acquired property of the coparceners.
This problem has already been in existence both in the Mitakshara and the Dayabhaga Schools of Hindu law and the solution of the problem of division or partition of coparcenary property may follow either the pattern followed in Hindu law or statutory provisions may be made in this behalf. But, in any case, the inclusion of a female child in coparcenary is not against the letter and spirit of Hindu law.
Historical Perspectice of Coparcenary
Coparcenary is “unity of title, possession and interest”. To clarify the term further, a Hindu Coparcenary is a much narrower body than a Hindu joint family, it includes only those persons who acquire by birth an interest in the coparcenary property, they being the sons, grandsons, and great-grandsons of the holders of the property for the time being.
In Dharmasastra coparceners are referred to as Sahadaee. The term coparceners came to be used as a result of the influence of Western Jurisprudence. Therefore, the present concept is not very difficult from the earlier one. The justification of coparcenary according to the Mitakshara School is that those who can offer funeral oblations (Pindh-daan) are entitled to the property.
The concept of Pindh-daan is that the person who offers funeral oblations share the same blood with the person to whom he is offering a Pindh. A coparcenary is purely a creation of law; it cannot be created by act of parties, except by adoption. In order to be able to claim a partition, it does not matter how remote from the common ancestor a person may be, provided he is not more than four degrees removed from the last male owner who has himself taken an interest by birth.
COPARCENARY UNDER MITAKSHARA SCHOOL AND DAYABHAGA SCHOOL
The Hindu Joint Family is the composition of a common ancestor along with his lineal male descendants and their wives, daughters, etc. So for the existence of a joint family, there must be a common ancestor but it doesn’t mean that for the continuance of Joint Family the common ancestor must require, by this it’s meant that whenever a common ancestor dies there is always an addition to the lower link of the Family.
So once an upper link is removed it doesn’t mean that the Joint Family will end. This concept is followed under both Mitakshara and Dayabhaga but it is an area where it makes distinguish between each of them. In most parts of India, the Mitakshara concept of Joint Family is followed but in West Bengal, Assam, and other parts the Dayabhaga concept of Joint Family is followed by the people.
In a case Rajgopal v Padmini whenever if two or more families agree to live together by sharing their food, work, resources, gains, etc. into a common stock, then there will be an existence of Joint Family. In other cases, Ram Kumar v Commr. Income Tax it was observed that Hindu Joint Family is considered as a unit and it is headed by a Person called as Karta.
In Mitakshara Joint Family Property son has a right over the property since the birth, even an illegitimate son or a widowed daughter has a right over the property of their father’s Joint Family Property. Another feature is the right to Maintenance and right of survivorship which will be given to the unmarried daughters and other members respectively in the Joint Family. Under Mitakshara only Joint Family property will be acquired by the coparcenary by the concept of succession and survivorship.
In the case Board of Revenue v. Muthu Kumar it was observed that when a son inherits the father’s separate property, he will acquire it as a separate property even if he has a son under Section 8 of the Hindu Succession Act. Whereas in Dayabhaga Joint Family Property son have no right over the properties by birth. Even the concept of Survivorship is not given to son and therefore there is no joint family between the son and the father. Under Dayabhaga it includes all the properties both self-acquired and joint family property will be devolved by succession.
COPARCENARY UNDER MITAKSHARA SCHOOL OF JOINT FAMILY
Coparcenary idea under Hindu Law was mainly by the male member of the family were just children, grandsons, and great-grandsons son who have a right by birth, who has an interest in the coparcenary property. No female of a Mitakshara coparcenary could be a coparcener but she will always be a part of the Joint Family. So under Mitakshara a son, son’s son, son’s son’s son can a coparcenary i.e. father and his three lineal male descendants can be a coparcener.
In case Venugopala v. Union of India it was held that under Mitakshara School of coparcenary is based on the notion of birthright of son, son’s son, son’s son’s son.
All this concept was followed by the Hindu Succession Act, 1956 but there was a recent amendment made to the Hindu Succession (Amendment) Act, 2005 that even a daughter is entitled to a coparcenary under the joint family. In SubhashEknathraoKhandekar v. Pragyabai ManoharBirade, it was held that even a daughter can be a coparcener according to Section 6 of the Act but widows of the son can’t be a coparcener according to the Act.
So all the examples it’s clear that a coparcenary can’t be consist of a female under Mitakshara School either by entering into the agreement between the members of Joint Family or with the coparceners. It is a creation of law that only four-degree lineal male descendants can be coparcenary.
- INCIDENTS OF COPARCENERSHIP – The incidents of copartnership are: A coparcener has an interest by birth in the joint family property, though until partition takes place, this is an unpredictable and fluctuating interest which may be enlarged by deaths and diminished by births in the family; every coparcener has a right to be in joint possession and enjoyment of joint family property – both these are expressed by saying that there is a community of interest and unity of possession.
- UNPREDICTABLE AND FLUCTUATING INTEREST – The most remarkable feature of interest by birth is that the interest which a coparcener acquires by birth is not a specified or fixed interest. At no time before the partition can it be predicted that he is entitled to so much share in the joint family property Nor can he say that such and items of property belong to him, even if the property is in his possession or use the interest fluctuates with the births and deaths in the family.
- COMMUNITY OF INTEREST AND UNITY OF POSSESSION – This aspect of mitakshara joint family is indicative that probably the joint family evolved out of the village community. The nature of the ownership of the mitakshara coparcener in the joint family property is communal ownership the communal nature of interest in the joint family has to be expressed by saying that a son has a right by birth and that the interest of decreased coparcener passes by survivorship. One, the possession of one coparcener is possession of all coparceners. If one coparcener is in possession of the joint family property through him other coparceners are also deemed to be in possession of the property.
- RIGHT OF MAINTENANCE – Every coparcener and every other member of the joint family has a right of maintenance out of the joint family property. The right of maintenance subsists through the life of the member so long as the family remains joint.
- COPARCENER’S RIGHT TO RESTRAIN AND CHALLENGE ALIENATION – The mitakshara did not permit individual alienations by coparceners. The smitrikars also did not seem to confer on coparcener power of alienation over his undivided interest in the joint family property, the law of coparcener’s power of alienation is the product of judicial legislation. The first inroad was made when it was held that a personal money decree against a coparcener could be executed against his undivided interest in the joint family property.
- COPARCENER’S RIGHT OF PARTITION – As a general rule, the entire joint family property is, and the separate property of coparceners is not subject to partition. Where the existence of a joint family is not disputed, every coparcener is entitled to an equal share. However, some properties may be held jointly by two or more coparceners, though other coparceners might claim a share in them. The impartibly estates which constitute joint family property are not liable to partition.
- ILLEGITIMATE SON AS A COPARCENER – The Hindu law has never considered an illegitimate child as a filius nullius. An illegitimate son, particularly the dasiputra and has always been regarded as a member of his putative father’s joint family and as such has a right to be maintained out of the joint family funds during his entire life. However, he has not been considered a coparcener. After the death of his father, he becomes a coparcener with the legitimate sons of his father and can claim a partition, though he is entitled to take only half a share of what he would have taken had he been a legitimate son.
- COPARCENARY BETWEEN A SANE AND INSANE PERSON – There can be a coparcenary between a sane person and an insane person. A coparcener gets his right in the coparcenary property by birth and there is nothing in Hindu law which shows that such a right is irrevocably extinguished on a supervening insanity. Under Hindu law, an insane coparcener has no right to claim partition and has no right to a share if partition takes place, but this does not make him cease to be a coparcener.
- COPARCENARY BETWEEN A FATHER AND SONS BORN OF CIVIL MARRIAGE – If a Hindu performs a marriage under the Special Marriage Act, 1954, with a non- Hindu, his interest in the joint family property is severed. But does it mean that there cannot be a coparcenary between such a Hindu and a son born to him out of the marriage? A coparcenary will come into existence between him and his son provided his son is a Hindu
- COPARCENARY WITHIN THE COPARCENARY – In Mitakshara school there’s a concept of Coparcenary within the Coparcenary i.e. a separate coparcenary’s can exist within a coparcenary. Suppose a coparcener consists of P and three sons Q, R and S. Q having two sons QS1, QS2. R having three sons RS1, RS2, RS3. Suppose P and three sons Q, R, and S acquire the separate property then when Q dies his separate property can be acquired by his sons QS1, QS2 and they can form a separate coparcenary themselves. This concept is called Coparcenary within the Coparcenary. The matter was considered by the Supreme Court in Bhagwan v. Reoti and it recognizes a branch of the family as a subordinate corporate body.
FEMALE HINDUS AS COPARCENER AFTER: THE HINDU SUCCESSION (AMENDMENT) ACT, 2005
The Amendment of 2005 is in itself a historic step, that is taken by the legislature by removing the gender inequalities in Hindu Laws regarding the inheritance and succession. Basically, this is a step to remove the gender discrimination which is contained under Section 6 of the Act of 1956 by providing equal rights to the daughters as the sons have in the Hindu Mitakshara coparcenary property and also by abolishing section 23 of the Act of 1956 which disentitles the female Hindus to ask for partition in the dwelling house which is wholly occupied by the Joint Hindu Family until the male Hindus choose to divide their shares. This is all which the Law Commission of India recommended in his 174th Report on“Property Rights of Women: Proposed reform under Hindu Law”.
By the Amendment Act of 2005, in a Joint Hindu Family which is governed by the Mitakshara Law, now the daughter of a coparcener shall also by birth become a coparcener in her own right in the same manner as of son. The daughter has now the same rights as of the son in the coparcenary property and she is now also subject to the same liabilities and disabilities as of son in respect of the coparcenary property.
Moreover, the provisions are also made that where a Hindu dies after the commencement of the Amendment Act of 2005, his interest in the property of Joint Hindu Family which is governed by the Mitakshara Law shall be devolved by testamentary or intestate succession under the Act and not by the rule of survivorship and the coparcenary property of the Joint Hindu Family shall be deemed to have been partitioned as if partition takes place and the daughter is given the share same as is allotted to son. Provision was also made that the share of the predeceased son or a predeceased daughter as they would have got, had they been alive at the time of partition, shall be allotted to the surviving child of a predeceased daughter.
HON’BLE SUPREME COURT ON THE EFFECTS OF AMENDMENT ACT OF2005
Judicial decisions of the Apex Court and the Hon’ble High Courts are of very important, as they laid down the interpretation of the enactments and the intention of the legislature. Here some of the most important recent decisions of the judiciary for ascertaining the actual effects of the Amendment Act of 2005.
1.Ganduri Koteshwaramma and another Versus Chakiri Yanadi and another: Hon’ble Supreme Court, in this case, held that the new Section 6 provides for parity of rights in the coparcenary property among male and female members of a joint Hindu family on and from September 9, 2005. The Legislature has now conferred substantive right in favor of the daughters. According to the new Section 6, the daughter of a coparcener becomes a coparcener by birth in her own rights and liabilities in the same manner as the son.
The declaration in Section 6 that the daughter of the coparcener shall have the same rights and liabilities in the coparcenary property as she would have been a son is unambiguous and unequivocal. Thus, on and from September 9, 2005, the daughter is entitled to a share in the ancestral property and is a coparcener as if she had been a son.
2.Ms. Vaishali Satish Ganorkar & anr. Versus Mr. Satish Keshaorao Ganorkar & others: Hon’ble Bombay High Court, in this case, held that ipso facto upon the passing of the Amendment Act all the daughters of a coparcener in a coparcenary or a joint HUF do not become coparceners. The daughters who are born after such dates would certainly be coparceners by virtue of birth, but for a daughter who was born prior to the coming into force of the amendment Act, she would be a coparcener only upon the devolution of interest in coparcenary property taking place.
Until a coparcener dies and his succession opens and a succession takes place, there is no devolution of interest and hence no daughter of such coparcener to whom an interest in the coparcenary property would devolve would be entitled to be a coparcener or to have the rights or the liabilities in the coparcenary property along with the son of such coparcener.
A reading of Section as a whole would, therefore, show that either the devolution of legal rights would accrue by the opening of a succession on or after 9 September 2005 in case of daughters born before 9 September 2005 or by birth itself in case of daughters born after 9 September 2005 upon them.
3.Shri Badrinarayan Shankar Bhandari and others Versus Ompraskash Shankar Bhandari: Hon’ble Bombay High Court, in this case, two conditions necessary for the applicability of Amended Section 6 (1) are :
(1)The daughter of the coparcener (daughter claiming benefit of amended Section 6) should be alive on the date of amendment coming into force; (2)The property in question must be available on the date of the commencement of the Act as coparcenary property. Hon’ble Bombay High Court also held that in this case that Section 6 as amended in 2005 is retroactive in nature and the court also considered the applicability of the amended provision to a daughter born prior to 17.06.1956 and after 17.06.1956 but prior to 09.09.2005.
The Bombay High Court held that it is imperative that the daughter who seeks to exercise such a right must herself be alive at the time when the Amendment Act, 2005 was brought into force. It would not matter whether the daughter concerned is born before 1956 or after 1956. This is for the simple reason that the Hindu Succession Act 1956 when it came into force applied to all Hindus in the country irrespective of their date of birth. The date of birth was not a criterion for the application of the Principal Act.
The only requirement is that when the Act is being sought to be applied, the person concerned must be in existence/living. The Parliament has specifically used the word “on and from the commencement of Hindu Succession (Amendment) Act, 2005” so as to ensure that rights which are already settled are not disturbed by virtue of a person claiming as an heir to a daughter who had passed away before the Amendment Act came into force.
It was observed and laid down the Hon’ble Bombay High Court that, the Amendment Act applies to all daughters born prior to 09.09.2005 and who are alive on the date of commencement of the Act i.e. on 09.09.2005. The case of coparcener who died before 9 September 2005 would be governed by pre-amended Section 6(1) of the Act. It is only in case of death of a coparcener on or after 9 September 2005 that the amended Section 6(3) of the Act would apply.
In other words, the provisions of the amended Section 6 (3) do not and cannot impinge upon or curtail or restrict the rights of daughters born prior to 9 September 2005 under sub-Sections (1) and (2) of the amended Section 6 of the Act. Sub-Sections (1) and (2) of amended Section 6 of the Act on the one hand and sub-Section (3) of the amended Section 6 of the Act on the other hand operate in two different fields.
This judgment of the Hon’ble Bombay High Court has laid down the diminutive details to be considered by all the Courts and has laid down the law in respect of the Amendment Act of 2005. The ratio has paved the way to many female Hindus, who are aspiring to assert their rights in coparcenary property. It has given a vast relief to the daughters to battle with the discrimination on the ground of gender equality and the consistent tyranny and denial of their fundamental right of equality.
COPARCENARY UNDER DAYABHAGA SCHOOL OF JOINT FAMILY
There is no concept of Joint Family under the Dayabhaga School as compared to the Mitakshara. There is no coparcenary consisting of Father, son, son’s son, son’s son’s son. The existence of Dayabhaga coparcenary comes only after the death of the father, by that the son will inherit the property of him and constitute a coparcenary. The concept of Dayabhaga is followed only in certain parts of India like West Bengal, Assam, etc. in this school there is no right by birth given to son. Son can inherit the property on his father’s death.
Likewise when a son dies his heir’s male or females can succeed in his property. If suppose the son dies leaving behind widows or daughter’s then they can succeed the property and becomes coparcener. The main difference between both schools is that here the females can become coparceners.
Here the each coparcener takes a definite shares, unity of possession. Suppose in a family consisting of P and three sons B, C, D. On the death of A, the B, C, D will consist of a coparcener. On the Death of B his heirs will coparcener and so on. But under Dayabhaga school the coparcenary can’t consist of only females, there should be a male in first and followed by female’s members. So if a male dies leaving behind his widow and two daughters they will succeed upon his property but will not be forming a coparcener.
This article is written by Priya Bishnoi and edited by Rupreet Kaur Dhariwal.