Family Law Project

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

FINAL DRAFT OF FAMILY LAW ON: THE EVOLUTION OF COPARCENARY RIGHTS AND ITS PRESENT FORM IN INDIA

Acknowledgement

First of all, I would like to thank Maam for giving me this opportunity to make the project on such an immense topic and all the support and guidance that I have received from her, without which this project could not have turned into a reality. I would also like to thank all my colleagues and seniors for providing me support and material facts and figures related to this topic. Last but not the least; I would like to thank my parents for providing me appropriate guidance and support to prepare the project. All the above-mentioned people have very whole heartedly helped me to make this project in the present shape. Thank You!

TABLE OF CONTENTS

S.

TOPIC

Pg. No.

No 1.

INTRODUCTION

1–2

2.

THE TWO SCHOOLS OF HINDU LAW AND THE CONCEPT OF

2–4

COPARCENARY

3.

COPARCENARY – THE PAST

4–6

4.

THE PRESENT SCENERIO OF COPARCENARY IN INDIA

6–8

5.

CONCLUSION AND RECOMMENDATIONS

8–9

6.

BIBLIOGRAPHY, WEBLIOGRAPHY AND OTHER REFERENCES

10 – 10

1|Page 1. INTRODUCTION The primary purpose of understanding the concept of coparcenary was spiritual in nature. In Dharmasastra coparceners are referred to as Sahadaee. The term coparceners came to be used as a result of influence of Western Jurisprudence. The justification of coparcenary according to the Dayabhaga School is that those who can offer funeral oblations (Pindh-daan) are entitled to the property. The concept of Pindh-daan is that the person who offers funeral oblations share the same blood with the person to whom he is offering a Pindh. A coparcenary is purely a creation of law; it cannot be created by act of parties, except by adoption. In order to be able to claim a partition, it does not matter how remote from the common ancestor a person may be, provided he is not more than four degrees removed from the last male owner who has himself taken an interest by birth.1 The Black’s law dictionary gives a more comprehensive explanation of the term coparcenary. It says, “such estate arises where several take by descent from same ancestor as one heir, all coparceners constituting but one heir and having but one estate and being connected by unity of interest and of title. A species of estate, or tenancy, which exists where lands of inheritance descend from the ancestor to two or more persons. It arose in England either by common law or particular custom. By common law, as where a person, seized in fee- simple or fee-tail, dies, and his next heirs are two or more females, his daughters, sisters, aunts, cousins, or their representatives; in this case they all inherit, and these coheirs, are then called “coparceners”, or, for brevity “parceners” only. By particular custom, as where lands descend, as in gavelkind, to all the mates in equal degree, as sons, brothers, uncles etc…An estate which several persons hold as one heir, whether male or female. This estate has the three unities of time, title and possession; but the interests of the coparceners may be unequal.”2 A coparcener in relation to the father is a person who can offer a funeral cake or spiritual ministrations to him. This capability to offer spiritual salvation by the performance of funeral rites was with the son, son of a son (grandson), and son of a son of a son (great-grandson) and as a consequence of it they were conferred a right by birth in the property of the father. This

1 2

3 P.V.Kane, History of Dharmasastra 591 (3rd ed. 1993). Joseph R. Nolan et al., Black’s Law Dictionary 335 (6th ed. 1990).

2|Page religious aspect that associated it primarily with relationships and spiritual benefits and not merely from the property perspective were totally side-lined later by the legal aspect. The essence of coparcenary is unity of ownership with the necessary appendage of unity of possession. No coparcenary can commence without a common male ancestor, though after his death it may consist of collaterals such as brothers, uncles, cousins nephews etc. It is a purely a feature of law and cannot be created by a contract. However, an adopted son may be introduced as a member of the coparcenary. Once the common ancestor dies, the coparcenary of the brothers can be created.3 2. THE TWO SCHOOLS OF HINDU LAW AND THE CONCEPT OF COPARCENARY The codified Hindu law lays down uniform laws for all the Hindus in the society. It leaves no scope for the existence of two schools of Hindu Law in the codified laws. Their relevance lies only in those areas in which there is no defined and codified law. It was in the era of digests and commentaries that the two schools originated in. a) MITHAKSHARA SCHOOL: This school owes its name to Vijnanaeshwara’s commentary on the Yajnavalkya smriti by the name of ‘Mitakshara.’ This school prevails in the whole of India except Assam and Bengal.4 This, inspite of being a running commentary, is also a digest of practically all the leading Smritis and the deals with all the titles of Hindu law. The date of composition is placed by Kane from A.D. 1100-1200. The word Mitakshara literally means a ‘brief compendium’. The mitakshara School follows the law of inheritance based on the Principle of Propinquity i.e. on the nearness of blood relationship. However, full effect to this was not given. The Hindu Succession Act 1956 has given full effect to the same principle. There are four Sub-Schools under the Mitakshara School:

DRAVIDIAN SCHOOL OF THOUGHT (MADRAS SCHOOL): It exists in South India. In the case of adoption by a widow it has a peculiar custom that the consent of the sapindas was necessary for a valid adoption. (‘Sapindas’ – blood relation).

3 4

AN Sen, Hindu Law (3d ed. Sri Sai Law Publications, 2008). Rohan v. Lachuman, AIR 1976 Pat 286.

3|Page MAHARASHTRA SCHOOL: (BOMBAY SCHOOL OF THOUGHT): It exists in Bombay, from the above four bases, there are two more bases. They are Vyavakara, Mayukha and Nimaya Sindhu. The Bombay school has got an entire work of religious and Civil laws.

BANARAS SCHOOL OF THOUGHT: It exists in Orissa and Bihar.

MITHILA SCHOOL OF THOUGHT: It exists in Uttar Pradesh near the Jamuna river areas. Apart from the above schools, there were four more schools which are non-existent today. They were Vyavakara, Mayukha Nimaya and Sindhu Schools.

b) DAYABHAGA SCHOOL: This school is considered to be the dissident school of the Benaras School. Benaras- has been the seal of the Brahmana learning and the citadel of Brahmin orthodoxy and conservatism. The Bengal school propagated a number of enlightened theories and doctrines. This school owes its origin to Jimutavahana’s digest on leading Smritis by the name of Dayabhaga. This School is prevalent in Assam and Bengal. 5 Kane places the date of composition of Jimutvahana’s literary career from 1090-1130 A.D6. HINDU LAW OF SUCCESSION: Any part of the Hindu law which is yet uncodified is governed by these two Schools. According to the Mitakshara School, there is unity of ownership – no person has a definite share as his interest is always fluctuating with the births and deaths in the family. The whole body of coparceners is the owner. There is unity of possession and enjoyment. Further, while the family is joint and some coparceners have children and others have few or none or some are absent, they cannot complain at the time of partition about some coparceners having exhausted the whole income and cannot ask for an account of past income and expenditure. Katyayana expressly states that the joint family property devolves by survivorship that is on the death of a coparcener his interest lapses and goes to the other coparceners.

5 6

ibid. Kane, (2nd ed.) at 609 and 709.

4|Page THE DIFFERENCE BETWEEN MITAKSHARA AND DAYABHAGA SCHOOL’S CONCEPTION OF COPARCENARY: The conception of coparcenary under the Dayabhaga School is entirely different from that of the Mitakshara School. Under the Dayabhaga School, sons do not acquire any interest by birth in ancestral property, but the son’s right arises only on the father’s death and the sons take property as heirs and not as survivors. However, the coparcenary in Hindu law is not identical to the coparcenary as understood in English law. Thus, in the case of death of a member of coparcenary under the Mitakshara law, his interest devolves on the other members by survivorship while under English law, if one of the co-heirs jointly inheriting properties dies, his or her right goes to his or her legal heirs. 3. COPARCENARY – THE PAST The coparcenary as understood in Hindu law has its origin in the concept of Daya as explained by Vijnaneshwara while commenting on Yajnavalkyasmriti in the Daya vibhaga prakranam vayavahara adhaya. Here, Vijnaneshwara discussed that Daya is only that property which becomes the property of another person, solely by reason of relation to the owner. The words solely by reason of relation exclude any other cause, such as purchase or the like. Narada also approves the meaning of the Daya which is a coparcenary property because according to him, sons can divide only father’s property which has been approved by the learned (Svatvanimitasam bandhopalashanam). Therefore, the unique concept of coparcenary is the product of ancient Hindu jurisprudence which later on became the essential feature of Hindu law in general and Mitakshara School of Hindu law in particular. POSITION OF WOMEN PRIOR TO ENACTMENT OF HINDU SUCCESSION ACT, 1956Since time immemorial the framing of all property laws have been exclusively for the benefit of man and woman has been treated as subservient, and dependent on male support. The right to property is important for the freedom and development of a human being. Prior to the Act of 1956, Shastric and Customary laws, which varied from region to region, governed Hindus and sometimes it varied in the same region on a caste basis. As the country is vast and communications and social interactions in the past were difficult, it led to diversity in the law.

Consequently, in matters of succession also, there were different schools, like Dayabhaga in

5|Page Bengal and the adjoining areas; Mayukha in Bombay, Konkan and Gujarat and Arumakkattayam or Nambudri in Kerala and Mitakshara in other parts of India with slight variations. The multiplicity of succession laws in India, diverse in their nature, owing to their varied origin made the property laws even mere complex. Prior to Hindu Law of Inheritance Act, 1929- Prior to this Act, the Mitakshara law also recognizes inheritance by succession but only to the property separately owned by an individual, male or female. Females are included as heirs to this kind of property by Mitakshara law. Before the Hindu Law of Inheritance Act 1929, the Bengal, Benares and Mithila sub schools of Mitakshara recognized only five female relations as being entitled to inherit namely – widow, daughter, mother paternal grandmother, and paternal great-grand mother . The Madras subschool recognized the heritable capacity of a larger number of female’s heirs that is of the son’s daughter, daughter’s daughter and the sister, as heirs who are expressly named as heirs in Hindu Law of Inheritance Act, 1929.The son’s daughter and the daughter’s daughter ranked as bandhus in Bombay and Madras. The Bombay school which is most liberal to women, recognized a number of other female heirs including a half sister, father’s sister and women married into the family such as stepmother, son’s widow, brother’s widow and also many other females classified as bandhus. 4. THE PRESENT SCENERIO OF COPARCENARY IN INDIA The concept of coparcenary was introduced in the ancient India. Over the period of years, the circumstances changed with the need of the hour i.e., Hindu Succession Act, 1956 which was again amended in 2005. The Hindu Succession (Amendment) Act, 2005, amended Section 6 of the Hindu Succession Act, 1956, allowing daughters of the deceased equal rights with sons. In the case of coparcenary property, or a case in which two people inherit property equally between them, the daughter and son are subject to the same liabilities and disabilities. The amendment essentially furthers equal rights between males and females in the legal system. Position of Women after Enactment Of Hindu Succession Act, 1956- After the advent of the Constitution, the first law made at the central level pertaining to property and inheritance concerning Hindus was the Hindu Succession Act, 1956. This Act dealing with intestate succession among Hindus came into force on 17th June 1956. It brought about changes in the

6|Page law of succession and gave rights, which were hitherto unknown, in relation to a woman’s property. The section 6 of Hindu Succession Act, 1956 was amended in 2005. However, section 6 did not interfere with the special rights of those who are members of a Mitakshara coparcenary except to provide rules for devolution of the interest of a deceased in certain cases. The Act lays down a uniform and comprehensive system of inheritance and applies, interalia, to persons governed by Mitakshara and Dayabhaga Schools as also to those in certain parts of southern India who were previously governed by the Murumakkattayam, Aliyasantana and Nambudri Systems. The Act applies to any person who is a Hindu as defined in section 2 of Hindu Succession Act, 1956. But now the question the question is whether, the Hindu Succession Act actually gave women an equal right to property or did it only profess to do so. The retention of the Mitakshara coparcenary without including females in it meant that females couldn’t inherit ancestral property as males do. If a joint family gets divided, each male coparcener takes his share and females get nothing. Only when one of the coparceners dies, a female gets a share of his share as an heir to the deceased. Thus the law by excluding the daughters from participating in coparcenary ownership (merely by reason of their sex) not only contributed to an inequity against females but has led to oppression and negation of their right to equality and appears to be a mockery of the fundamental rights guaranteed by the Constitution. Hence this very fact necessitated a further change in regards to the property rights of women, and which was done by the Hindu Succession (Amendment) Act, 2005. Rights conferred upon women by the Hindu Succession Act, 2005: Out of many significant benefits brought in for women, one of the significant benefit has been to make women coparcenary (right by birth) in Mitakshara joint family property. Other benefits provided to females are as follows: i.

Earlier the female heir only had a deceased man’s notional portion. With this amendment, both male and female will get equal rights. In a major blow to patriarchy, centuries-old customary Hindu law in the shape of the exclusive male mitakshara coparcenary has been breached throughout the country. The preferential right by birth of sons in joint family

7|Page property, with the offering of “shradha” for the spiritual benefit and solace of ancestors, has for centuries been considered sacred and inviolate. It has also played a major role in the blatant preference for sons in Indian society. This amendment, in one fell swoop, has made the daughter a member of the coparcenary and is a significant advancement towards gender equality. ii.

The significant change of making all daughters (including married ones) coparceners in joint family property has been of great importance for women, both economically and symbolically. Economically, it can enhance women’s security, by giving them birthrights in property that cannot be willed away by men. In a male-biased society where wills often disinherit women, this is a substantial gain.

iii.

Women can become kartas of the property. Symbolically, all this signals that daughters and sons are equally important members of the parental family. It undermines the notion that after marriage the daughter belongs only to her husband’s family. If her marriage breaks down, she can now return to her birth home by right, and not on the sufferance of relatives. This will enhance her self-confidence and social worth and give her greater bargaining power for herself and her children, in both parental and marital families.

iv.

Now under the amendment, daughters will now get a share equal to that of sons at the time of the notional partition, just before the death of the father, and an equal share of the father’s separate share. Equal distribution of undivided interests in co-parcenery property. However, the position of the mother regarding the coparcenary stays the same. She, not being a member of the coparcenary, will not get a share at the time of the notional partition. The mother will be entitled to an equal share from the separate share of the father computed at the time of the notional partition. In effect, the actual share of the mother will go down, as the separate share of the father will be less as the property will now be equally divided between father, sons and daughters in the notional partition.

To get the benefit as per the amended Act, the following conditions need to be satisfied: a) She should have been born into the family. b) The undivided coparcenary property must exist on 20.12.2004. c) Partition of the property ought not to have taken place prior to 20.12.2004.

8|Page 5. CONCLUSION AND RECOMMENDATIONS The law regarding the coparcenary in the joint Hindu family has evolved over time. Before independence various legislations were passed regarding coparcenary. The main change that has been brought after the independence was in 2005 when the Hindu Succession (Amendment) Act, 2005 was enacted. This act changed the face of the Hindu Succession Act by giving equal rights to women as that of the men. The women too can now be the coparceners. It is necessary to understand that if equality exists only as a phenomenon outside the awareness and approval of the majority of the people, it cannot be realized by a section of women socialized in traditions of inequality. Thus there is need to create social awareness and to educate people to change their attitude towards the concept of gender equality. The need of the hour is also to focus attention on changing the social attitudes in favour of equality for all by enacting a uniform law. Despite the enactment of the Hindu Succession (Amendment) Act, 2005 the law still has some anomalies. The future of coparcenary lies in the moving further ahead and improving the position of women by giving effect to the solutions to the following anomalies in the Hindu Succession Act, 1956. Some Anomalies That Still Persist: a) Making daughters coparceners will decrease the shares of other Class I female heirs, such as the deceased’s widow and mother, since the coparcenary share of the deceased male from whom they inherit will decline. In States where the wife takes a share on partition, as in Maharashtra, the widow’s potential share will now equal the son’s and daughter’s. But where the wife takes no share on partition, as in Tamil Nadu or Andhra Pradesh, the widow’s potential share will fall below the daughter’s. b) Co-parcenary remains a primary entitlement of males; the law, no doubt provides for equal division of the male co-parcener’s share on his death between all heirs, male and female; still, the law puts the male heirs on a higher footing by providing that they shall inherit an additional independent share in co-parcenary property over and above what they inherit equally with female heirs; the very concept of co-parcenary is that of an exclusive male membership club. c) Partially restricting the right to will. Such restrictions are common in several European

9|Page countries. Otherwise women may inherit little, as wills often disinherit them. However, since the 2005 Act does not touch testamentary freedom, retaining the Mitaksara system and making daughters coparceners, while not the ideal solution, at least provides women assured shares in joint family property. d) If a Hindu female dies intestate, her property devolves first to husband’s heirs, then to husband’s father’s heirs and finally only to mother’s heirs; thus the intestate Hindu female property is kept within the husband’s lien. The difficult question of implementing the 2005 Act remains. Campaigns for legal literacy; efforts to enhance social awareness of the advantages to the whole family if women own property; and legal and social aid for women seeking to assert their rights, are only a few of the many steps needed to fulfill the change incorporated in the Act.

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6. BIBLIOGRAPHY AND WEB REFERENCES

BIBLIOGRAPHY: 

Priyanka Goswami, Inclusion of daughter in Mitakshara coparcenary: a radical change, 5 The Clarion- International Multidisciplinary Journal 109, 109 (2016).



Manoranjan Ayilyath, Did Hindu Succession Act Indeed Outcast Mitakshara Coparcenary, SSRN Electronic Journal.



Srimati Basu, She comes to take her rights: Indian women, property, and propriety (1999).



Dr. Poonam Pradhan Saxena, Family Law Lectures II 77-97 (3d ed. LexisNexis, 2011).

WEB REFERENCES: 

Jasleen Kaur Dua, Coparcenary in India: It’s Past, Present and Future (March 12, 2017), .



Rahul Shrivastava, Coparcenary Rights of Daughters in Hindu Coparcenary (March 14, 2017), .



Klaus Deininger, Women's Inheritance Rights and Intergenerational Transmission of Resources

in

India

(March

.

15,

2017),