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The Concept of Coparcenary: it’s past, present and future in the Hindu concept of Joint Family

Copartioners means the division of property between co-owners or joint owners or parties of inheritance in a Hindu Joint Family is known as coparceners. They are the person who has a birthright to parental property and also has a right to partition. A coparcenary including a common ancestor has succession up to four degrees of lineal descent.

It is derived from the concept and practice of the Hindu Undivided Family (HUF). The concept of coparcenary is dealt with within the provisions of the Hindu Succession Act, 1956. This concept is originated from ancient Hindu jurisprudence and became an essential feature of Hindu Law.

Schools Of Law

Earlier there were two schools of thought to administer and regulate Hindu laws:
  1. Mitakshara School:

    It is a community interest under which everybody owns a uniform interest in the property. And upon the death of a person property can be divided into all the sons including grandsons. It is not necessary that upon the death of a person, the property is to be divided, it is decided by the community. In this school, the property is not divided between wife and unmarried daughter upon the death of the successor. Karta of the family has to render a full account. Only Apratibandhaya or unobstructed property is inherited by Mitakshara school.
  2. Dayabhaga School:

    It is one of the schools belonging to Hindu Law where sons have an absolute share after the father. But the other lineal sons cannot get any share. They will get the property upon their own father's death. In this school, if one of the members of the successor dies his wife and unmarried daughter can acquire the property known as succession per stripe. Karta renders full account only at the time of partition of the property. Both Apratibandhaya, as well as Sapratibandhaya property, can be inherited by Dayabhaga school.

Past, Present, And Future Analysis
  • Hindu Law of Inheritance Act, 1929 was the first legislation that stated that three female heirs son’s daughters, granddaughters, and sisters could inherit the ancestral property.
  • Hindu Women Right to Property Act, 1937 brought major changes in the customary laws and schools of thought. It focused primarily on the rights of widows and divorces.
  • Earlier in Section 6 of the Hindu Succession Act, 1956 in which daughters were not having any right over the property. The doctrine of Survivorship was applicable which states that sons are the coparceners by birth, but the property maintains the women. Women can only become Karta of the family in certain cases.
  • But after the amendment of the Hindu Succession Act, 2005 daughters are considered coparceners by birth. Sons and daughters both have equal rights over the property. The doctrine of Survivorship is no more valid. And women can become Karta of the family. Even if the father of a daughter died before 2005, she is entitled to an equal share.
  • Article 14 of the Constitution of India was given importance and challenged the fundamental principles of Hindu coparcenary law. Equal rights were given to married and unmarried daughters.

Case Laws
  1. State of Maharashtra V. Narayan Rao Sham Rao Deshmukh And Ors (1985) 2 SCC 321
    In this case, it was stated that a Hindu coparcenary is a narrower body than the joint family. Only males who acquire from birth an interest in the joint or coparcenary property can be members of the coparcenary or coparceners. Coparceners consists of the male members of the joint family and his sons, grandsons, and great-grandsons. It includes one common ancestor and not more than three male descendants.

  2. Sathyaprema Manjunatha Govda V. The Controller of Estate Duty (1997) 227 ITR 1 SC
    It was stated by the court that while a son, grandson, and great-grandson is a coparcener, the great-great-grandson cannot be included in the coparcenary property.

  3. Panduram V. Panduram Pandurang
    In this case, it was held that an adult female of the Hindu Joint Family can act as a Karta.

  4. Shyama Devi And Ors V. Manju Shukla And Anr. on 12th September 1994
    Section 23 of the Hindu Succession Act, 1956 women, did not have the right to partition but after the amendment of the Hindu Succession (Amendment) Act, 2005 has given equal rights to the daughters in the coparcenary property as the sons already have.

  5. Collector of Madura V. Mootoo Ramalinga Sethupathy (1868) 12 M.I.A. 397
    It was stated that a widow has the authority to adopt a son without her husband's consent.

  6. Prakash and Ors V. Phulavati and Ors on 16th October 2015
    In this landmark case, it was declared that only living daughters of living coparceners have the right over the property. There was a dispute between brother and sister concerning the share of ancestral property. So, Phulavati filed a case claiming the property of her father. Court expressed that there is a retrospective effect that it will act backward and take away all the rights. Hence, Phulavati cannot be considered a coparcener because her father died much before 20th December 2004.

  7. Danamma @ Suman Surpur V. Amar on 1st February 2018
    Danamma claimed one by a fourth of the share of the property of her father who died in the year 1991. But the brothers of Danamma stated that she is not entitled to claim the property because:
    1. the act was not amended at the time of death of the father.
    2. then she was already married and given dowry.
      High Court stated taking Prakash V. Phulavati as a precedent that Danamma will get the property even if her father died in the year 2001.

  8. Vineeta Sharma V. Rakesh Sharma on 11th August 2020
    In this case, the person died before the commencement of the act on 20th December 2004. But this is irrelevant because the act is acting retroactively. It will not take away the rights and privileges already acting. By overruling the judgment of Prakash V Phulavati it was concluded that daughters are entitled to property by birth.

After the amendment, we must say it is fair enough to give equality to every sphere of law. The women can now become coparceners of the property. The judges, however, were well aware that a change in law only a stepping stone to a broader, more holistic shift in social morality. Therefore I would like to conclude by saying that the law has changed, society must too.

Award Winning Article Is Written By: Shambhavi Shree
A 4th-year law student at KIIT School of Law, Bhubaneswar pursuing a B.B.A.LLB.
Awarded certificate of Excellence
Authentication No: JL34618538369-01-0721

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