Coparcenary under Hindu Law, By Erwin Thomas Wilson@LexCliq

Coparcenary is a legal term that refers to Hindu succession law. It refers to a person who can assume a legal right to his ancestors’ land by birth. It literally translates to “equality in title, ownership, and importance.” It is solely a legal creation; it cannot be formed by parties acting together, except by adoption. It is based on the Hindu definition and tradition of the undivided family.

Coparcenary is governed by the Hindu Succession Act of 1956, but it has undergone significant revisions that will be addressed in greater depth later.

Undivided Hindu family

A Hindu undivided family, also known as a Hindu joint family, is a large extended family of which all members are direct descendants of a single ancestor. This family consists of three generations of descendants of a single ancestor who is usually the oldest. This is also a tradition seen in Jainism, Sikhism, and Buddhism.
The Hindu Succession Act of 1956 governs this family structure. It is a statute that governs the sale, devolution, and possession of the inherited property within Hindu joint families. While patriarchal, the act has resulted in a few significant changes to the rules that have been withheld.

School of laws in Hinduism
There were two schools of thought for regulating and administering Hindu laws before their codification.

  • Mitakshara school
    According to the theory of propinquity, the rule of inheritance was practiced in this school of thought, which means in order of blood relation proximity. The same theory underpins the Hindu Succession Act of 1956. The distribution of parental property was based on the law of ownership by birth, which meant that the family’s sons had sole access to the joint family’s property by birth, while the family’s daughters had none. The doctrine of survivorship was the name given to this allocation law. The doctrine of survivorship was the name given to this allocation law. It essentially meant that the property could be given to the inheritor who could ensure the family’s longevity in the future. There is a sense of belonging; no one has a fixed share because the family’s size fluctuates due to births and deaths.
  • Dayabhaga school.
    The rule of inheritance was founded on the concept of divine gratification or moral gain in this school of thought. Based on the doctrine of oblations, the one who confers more spiritual gain will have the right to inherit the land. Also, females could inherit property in this school, and the property was not solely owned by the family’s sons. The sons do not inherit any ancestral property by birth, but their right to inherit occurs after the death of the Karta, the family’s ultimate head. The land is acquired by the sons as successors rather than survivors.

The succession law has a long and illustrious history.

Coparcenary is a term that emerged in ancient Hindu jurisprudence and has since been an integral part of Hindu law. All of the laws and regulations concerning the property and its privileges in Hindu law have always been skewed against men. They were exclusively framed for the benefit of the family’s members, with women still being seen as submissive. People were ruled by customary laws before the Hindu succession act of 1956, which differed from region to region and often discriminated against based on caste. This statute became notorious for its sexism against women and lack of equity in the law. Due to a shortage of resources, the new legislation was unable to be implemented across the world, resulting in regional differences. As a result, separate schools of thought and practices arose, further complicating and diverging the statute. Gender discrimination was a common problem in many of the law’s application areas.

1956 Hindu Succession Act

The Hindu Succession Act of 1956 was designed to ensure equity, as specified in Article 14 of the Indian Constitution. The Hindu Women’s Right to Property Act, which promoted the concept of a limited estate, was repealed in 1956 after this act was enacted. This act aimed to improve women’s prestige and role by allowing them to inherit a portion of their father’s lands. Via the notional division, daughters were considered legitimate heirs of their fathers and gained the right to inherit a portion of the separate property held by the father. The family’s ancestral property would only be legitimately inherited by the family’s son, and the daughter would have no claim to it, as per the laws of survivorship. This resulted in the persistence of inequalities, although at a slower or less rapid pace.

The Hindu Succession Amendment Act of 2005

The Hindu Succession Amendment Act of 2005 was adopted to bring women and daughters of the family on par with male members of the family. It was based on the recommendations made in the law commission report. The daughters of the household, whether married or unmarried, acquired coparcenary status with all of the rights and liabilities of a son as a result of this provision. This meant that, in addition to land shares and other rights, the daughter would now be responsible for the debts and damages.

The underlying concepts of Hindu coparcenary law are questioned in section 6 of this amendment. Daughters, both married and single, were granted full control over the coparcenary as the family’s sons under this provision. It also stated that females in the family will now serve as the family’s Karta, something they couldn’t do before this rule. Any reference to a coparcener will similarly apply to daughters.

Present status

There were major benefits for women in the social system since the 2005 change to the Hindu succession act 1986. The benefits offered have been seen reaping and thriving for the betterment of society in recent years. Unlike in the past, where they were relying on their male counterparts to consider them in their will to receive only a portion of their rights, now all daughters of the family are coparcenary owners of the family property and have equitable rights and liabilities. The option to respectfully avail their rights adds to their solid foundation and provides them with emergency economical backing which helps boost their confidence and potentially more.

Milind Sumant Raut & Ors. vs Shalini Sumant Raut & Ors.

Rajaram died in this case, leaving eight heirs: five sons and three daughters. His estate was divided by intestate succession, as specified by section 8 of the Hindu Succession Act, rather than by survivorship. The claimants would have to recognize the three female heirs and their share of the property via a notional division, it was decided. They’ll still have to think about the hypothetical partitions that will occur if these coparceners died and left behind female descendants in the future.


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