Concept of coparcenary,by Shivani Singh Sengar @Lexcliq

Coparcenary in Hindu Law

THECONCEPT OF COPARCENARY  According to Collins Dictionary – “a form of joint ownership of property, especially joint heirship”

 ‘Coparcenary’ is a narrower body than a joint family and consists of only those persons who have taken, by birth, an interest in the property of the holder for the time being and who can enforce a partition whenever they like.  State of Maharashtra v. Narayan Rao Sham Rao Deshmukh, 1985- “A Hindu coparcenary is narrower body than the joint family. Only males who acquire the birth an interest in the joint or coparcenary property can be members of the coparcenary or coparceners. A male member of the joint family and his sons, grandsons and great grandsons constitute a coparcenary”

 

Schools Of Law

Earlier there were two schools of thought to administer and regulate Hindu laws:

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.

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.

 

 

“Once a daughter, always a daughter”: Supreme Court of India

Highlights of the Current Judgement

The three-judge Bench headed by Justice Arun Mishra ruled the following:

 

That a Hindu woman’s right to be a joint heir to the ancestral property is by birth and does not depend on whether her father was alive or not when the law was enacted in 2005.

The Hindu Succession (Amendment) Act, 2005 gave Hindu women the right to be coparceners or joint legal heirs in the same way a male heir does. Since the coparcenary is by birth,it is not necessary that the father coparcener should be living as on 9.9.2005.

If a daughter is alive on the date of enforcement of the Amendment Act, she becomes a coparcener with effect from the date of the Amendment Act, irrespective of the date of birth earlier in point of time.

Daughters cannot be deprived of their right of equality conferred upon them by Section 6.

The judges also used the common saying that a son is a son until he gets a wife while a daughter is a daughter throughout her life.

The judgment noted that several cases on this issue were pending before different courts and were already delayed.

The court requested the pending matters to be decided, as far as possible, within six months.

 

 

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