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.
Hindu undivided family
Hindu undivided family or a Hindu joint family is an extended family arrangement where every member is a lineal descendant of a common ancestor. This family includes a common ancestor who is generally the eldest and three generations of his descendants. This practice can also be seen in Jainism, Sikhism and Buddhism.
This family arrangement is governed by the Hindu succession act 1956. It is a codified act and is concerned with the transfer, devolution and ownership of inherited property amongst the Hindu joint family. The act, although patriarchal, has seen a few major changes within the laws withheld. At the time of incorporation of the act, it was a compromise between tradition and modernity due to which equality could not be attained. It has now sought to redress some anomalies created by traditional Hindu Law.
Hindu schools of law
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. It basically meant that the property should be allocated to the inheritor who could continue the survival of the family in future. There is a unity of ownership; no person has a definite share as fluctuations keep happening due to births and deaths in the family.
Incident of Coparcenary
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 the 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 ancestral property owned by the family would still be legally inherited by the son of the family and the daughter would have no rights over it thereby following the rules of survivorship. This led to the continuity of inequality but at a slower or less diminishing pace.
Hence, the concept of coparcenary has come a long way and has undergone many changes. The 2005 amendment is a big step in dismantling patriarchal forces because it grants women economic freedom and challenges the notion that they become a part of their husband’s family after marriage. It is necessary to understand whether equality exists only as a phenomenon or it is actually present for the awareness and approval of the majority of the people. It should not be solely realized by placing a section of women in traditions of inequality.
by Rajat Malhotra@lexcliq