Coparcenary under Hindu Law



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.

Coparcenary is dealt within the Hindu Succession Act 1956 but has undergone major amendments which will be discussed further in detail.

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

Prior to the codification of Hindu laws, there were two schools of thought to regulate and administer Hindu laws.

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.

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.

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