BRIEF INTRODUCTIN ON COPARCENARY UNDER HINDU LAW BY AESHA SHETH @LEXCLIQ

Coparcenary is a term used in matters related to Hindu Succession Law. It refers to a person who has the capacity to assume a legal right in his ancestral property by birth. It means ‘unity of title, possession and interest’. It is purely a creation of law; it cannot be created by the act of parties, except by adoption. It is directly derived from the concept and practice of Hindu undivided 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. Coparcenaries including a common ancestor have succession up to four degrees of lineal descent. Copartioner’s 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. Coparcenaries including a common ancestor have succession up to four degrees of lineal descent.

  • 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 Survivor ship 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 Survivor ship 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 coparcenaries law. Equal rights were given to married and unmarried daughters.

The Mitakshara School

In this school of thought, the law of inheritance was followed according to the principle of propinquity which means in order of nearness of blood relation. The Hindu succession act of 1956 was also based on the same principle. The allocation of the parental property was accorded on the rule of possession by birth which meant that the sons of the family had exclusive right by birth in the property of the joint family while the daughters of the family-owned no such rights. This rule of allocation was known as the doctrine of survivorship.

The Dayabhaga School

In this school of thought, the law of inheritance was based on the principle of religious reward or spiritual benefit. The right of inheriting the property would lie with the person conferring more spiritual benefit based on the doctrine of oblations. In this school, even females could inherit the property and the sons of the family did not exclusively own birthright to the property. The sons do not acquire any interest by birth in ancestral property but their right arises after the death of the Karta which stands for the ultimate head of the family. The sons acquire property as heirs and not as survivors.

Hindu Succession Act, 1956

The Hindu Succession Act, 1956 was focused upon providing equality as stated by Article 14 of Constitution Of India. The idea of the limited estate as propagated by the Hindu Women’s Right to Property Act was abolished in 1956 by the introduction of this act. This act tried to uplift the position and status of women in society by providing them with the inheritance of share in their father’s property.

Daughters were declared as legal heirs of their fathers and received the rights of inheritance of a share of the separate property owned by the father through the notional partition.

The Hindu Succession Amendment Act, 2005

The Hindu Succession Amendment Act, 2005 was enacted with the aim of expanding the rights of women and daughters of the family and brings them at par with the male members. It followed the suggestions provided by the law commission report. By the way of this amendment the daughters of the family, whether married or unmarried, gained coparcenaries rights with the other entire rights and liabilities equivalent to a son. This now meant that the daughter would also be liable for the debts and losses in addition to property shares and other rights.

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