Coparcenary in India_ It’s Past, Present and Future - Academike

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1/30/2016 C opar cenar y i n Indi a: It’ s Past, Pr esent and F utur e - Academ i ke

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Coparcenary in India: It’s Past, Presentand FutureF e b r u a r y 3 , 2 0 1 5 b y a m o o l y a — L e a v e a C o m m e n t

Jasleen Kaur Dua

Army Institute of Law, Mohali

“ Editor’s Note: The author looks at the past, present and future of the concept of

Coparcenary in India.”

INTRODUCTION:

Coparcenary owes its origin to the concept of Daya i.e. property which has been explained

by Vijnaneshwara while commenting on Yajnavalkyasmriti in the Daya vibhaga prakranam

vayavahara adhaya. Here, it was discussed by the Vijnaneshwara 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.

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

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learned.

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.

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. [1]

THE TWO SCHOOLS OF HINDU LAW:

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 these schools originated in.

1. Mitakshara School

2. Dayabhaga School

3. 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. [2] 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.

Doctrine of survivorship: the property after the death of the common ancestor devolves by

the survivor. The sons of the family have a birth right in the property by virtue of the following

two rules:


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Females will not inherit.

Agnates to be preferred over cognates.

These rules have made the Mitakshara School reactionary.

There are four Sub-Schools under the Mitakshara School:

1. 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)

Collector of Madura vs. Mootoo Ramalinga Sethupathy (Ramnad case)[3]: The zaminder of

Ramnad died any without sons and usually, such state would have escheated to the

Government, his widow however adopted a son, with the consent of the sapindas of her

husband.

But on the death of the widow, the Collector of Madhura notified that the Zamindari would

escheat to the State. The adopted son brought a suit for declaration of the validity of the

adoption. The question was that whether a widow can make a valid adoption without her

husband’s consent but his sapinda’s consent.

The Privy Council, after tracing the evolution of the various Schools of Hindu law, held that

Hindu law should be administered from clear proof of usage which will outweigh the written

text of law. Based on the Smriti Chandrika and Prasara Madhviya, the Privy Council

concluded that in the Dravida School, in the absense of authority from the husband, a widow

may adopt a son with the assent of his kindred.

1. 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.

1. MITHILA SCHOOL OF THOUGHT: It exists in Uttar Pradesh near the Jamuna river

areas. Apart from the above schools, there are four more schools which are now

existent today. They are Vyavakara, Mayukha Nimaya and Sindhu Schools.


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2. 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.[4]Kane places the date of composition of Jimutvahana’s literary career

from 1090-1130 A.D[5].

This school is based on the principle of religious efficacy or spiritual benefit. The ones who

confer more spiritual benefit is entitled to inherit the property in comparison to those who

confer less spiritual benefit[6] based on the Doctrine of Oblations. The females in the family

may also inherit the property. According to this School, the sons do not have a birth right to

the property. In the event of the coparcener dying issuless, his widow has a right to succeed

to his share and to enforce a partition on her own account. [7]

The difference between the Mitakshara School and the Dayabhage School is:

In respect of law of succession.

In respect of joint family.

Concept of Coparcenary:

Hindu Coparcenary and Hindu Joint Family:

Coparcenary is “unity of title, possession and interest”. Hindu Coparcenary is a much

narrower body than a Hindu joint family it includes only those persons who acquire by birth

an interest in the coparcenary property, they being the sons, grandsons, and great-

grandsons of the holders of the property for the time being.

Coparecenary: 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


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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.” [8]

The Dharamasastra and coparcenary: In Dharmasastra coparceners are referred to as

Sahadaee. The term coparceners came to be used as a result of influence of Western

Jurisprudence. Therefore, the present concept is not very difficult from the earlier one. 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. [9]

Hindu Law of Succession: any part of the Hindu law which is yet uncodified is governed by

the two Schools i.e. the Mitakshara and the Dayabhaga. 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.

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


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one of the co-heirs jointly inheriting properties dies, his or her right goes to his or her legal

heirs.

COPARCENARY – THE PAST:

In Hindu social system, Dharmasastras do not separate the spiritual from the secular,

therefore, in the grasthasrama a person is given the training to lead a complete and

meaningful life for the benefit and welfare of those who left and those who are present and

those who will be born. It is a unique phenomenon of Hindu philosophy that the Hindu family

has been thought of as one of the most important institutions because all other institutions

like brahmacharya, vanaprastha and sanyasha depend on it. Hence, the importance of the

family is advocated in the Dharmasastras.

Origin of coparcenary: 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 (Svatvanimitasambandhopalashanam).

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. [10]

Position Of Women (In Regards To Property Rights) Prior To Enactment Of Hindu

Succession Act, 1956-

Since 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


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

Dayabhaga in 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.

Issue of gender discrimination:

But, however the social reform movement during the pre-independence period raised the

issue of gender discrimination and a number of ameliorative steps were initiated. The

principal reform that was called for, and one which became a pressing necessity in view of

changed social and economic conditions, was that in succession there should be equitable

distribution between male and female heirs and the Hindu women’s limited estate should be

enlarged into full ownership (however that actually never happened).

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 sub-school 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.

Hindu Law of Inheritance Act, 1929-

This was the earliest piece of legislation, bringing woman into the scheme of inheritance.

This Act, conferred inheritance rights on three female heirs i.e. son’s daughter, daughter’s

daughter and sister.

Hindu Women’s Right to Property Act (XVIII of), 1937-


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This was the landmark legislation conferring ownership rights on women. This Act brought

about revolutionary changes in the Hindu Law of all schools, and brought changes not only in

the law of coparcenary but also in the law of partition, alienation of property, inheritance and

adoption. The Act of 1937 enabled the widow to succeed along with the son and to take a

share equal to that of the son. But, the widow did not become a coparcener even though she

possessed a right akin to a coparcenary interest in the property and was a member of the

joint family. The widow was entitled only to a limited estate in the property of the deceased

with a right to claim partition. A daughter had virtually no inheritance rights.

Despite these enactments having brought important changes in the law of succession by

conferring new rights of succession on certain females, these were still found to be

incoherent and defective in many respects and gave rise to a number of anomalies and left

untouched the basic features of discrimination against women. These enactments now stand

repealed.

Constitutional Provisions ensuring Gender Equality-

The framers of the Indian Constitution took note of the adverse condition of women in society

and a number of provisions and safeguards were included in the Constitution to ward off

gender inequality. In this context, Articles 14 [11] , 15(3)[12] and 16[13] of the Constitution can

be mentioned. These provisions are part of the Fundamental Rights guaranteed by the

Constitution. Part IV of the constitution containing Directive Principles of State Policy, which

are no less fundamental in the governance of the State to ensure equality between man and

woman such as equal pay for equal work.

Despite these provisions for ensuring equal status, unfortunately a woman is still not only

neglected in her own natal family but also the family she marries into because of certain laws

and attitudes.

THE PRESENT OF COPARCENARY IN INDIA:

“Change is the law of life. And those who look only to the past or present are certain to miss

the future.”

-John F. Kennedy

The concept of coparcenary was introduced in the ancient India. Over the period of years the


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circumstances changed, and with the need of the hour 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 law of succession and gave rights, which were hitherto

unknown, in relation to a woman’s property. The section 6 [14] 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 [15]. 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.

http://en.wikipedia.org/wiki/Coparcenary


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Rights conferred upon women by the Hindu Succession Act, 2005: (Specifically Focusing On

Section 6)

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.

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 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.

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.

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.

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.


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The extent of the amendment Act, 2005: it extends the equal coparcenary right to a daughter

born into a family right from her birth, it will have a retrospective effect. However, the

amendment act 2005 is not retrospective in nature for the following reasons:

The opening the section 6[16] of the Act states “On and from the commencement of the

Hindu Succession (amendment) Act, 2005.”

It has the condition that it will have no application in case where any disposition or

alienation including any partition or testamentary disposition of property had taken

place before 20.12.2004.

Thus to get the benefit as per the amended Act, the following conditions need to be

satisfied:

1. She should have been born into the family.

2. The undivided coparcenary property must exist on 20.12.2004.

3. Partition of the property ought not to have taken place prior to 20.12.2004.

If any of the above three conditions are not satisfied then the benefit under the amended act

will not be available.

THE FUTURE OF COPARCENARY:

We have indeed come far away from where we started and yet, there is a lot that needs to be

done. 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:

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.

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


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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.

Partially restricting the right to will. Such restrictions are common in several European

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.

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.

CONCLUSION

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.

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.

Edited by Amoolya Khurana

[1] Hindu Law, AN Sen, Sri Sai Law Publications, 2008 ed.


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[2] Rohan v. Lachuman, 1976 Pat, 286

[3] (1940) 1 MLJ 400

[4] Supra note 2

[5] K a ne , ( 2 e d . ) a t 6 0 9 a n d 7 0 9

[6] Lexis nexis student series, family law lectures, second ed. 2007, lexis nexis butterworth

wadhwa, poonam pradhan saxena, pg.49

[7] Ram Dulari v. Batul Bibi AIR 1976 All 135

[8] Joseph R. Nolan et al., Black’s Law Dictionary, 6th ed. 1990, p. 335

[9] P.V.Kane, History of Dharmasastra, Vol. III, 3rd ed. 1993, p. 591. Vide Moro v. Ganesh,

10 Bm. HCR, p. 444 where Mr. Justice Nanbhai Haridas very lucidly explains by several

diagrams the limits of a coparcenary and w

hat persons are entitled to demand a partition and from whom.

[10] 4 NLR 2008-2009; Pg 124

[11] Article 14 in The Constitution of India: Equality before law The State shall not deny to

any person equality before the law or the equal protection of the laws within the territory of

India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.

[12] Article 15(3) in The Constitution Of India 1949

(3) Nothing in this article shall prevent the State from making any special provision for

women and children

[13] Article 16 in The Constitution Of India: Equality of opportunity in matters of public

employment

(1) There shall be equality of opportunity for all citizens in matters relating to employment or

appointment to any office under the State

nd

http://indiankanoon.org/doc/250697/


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(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth,

residence or any of them, be ineligible for, or discriminated against in respect or, any

employment or office under the State

(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard

to a class or classes of employment or appointment to an office under the Government of, or

any local or other authority within, a State or Union territory, any requirement as to residence

within that State or Union territory prior to such employment or appointment

(4) Nothing in this article shall prevent the State from making any provision for the

reservation of appointments or posts in favor of any backward class of citizens which, in the

opinion of the State, is not adequately represented in the services under the State

(5) Nothing in this article shall affect the operation of any law which provides that the

incumbent of an office in connection with the affairs of any religious or denominational

institution or any member of the governing body thereof shall be a person professing a

particular religion or belonging to a particular denomination.

[14]Section 6 of Hindu Succession Act, 1956: “Devolution of interest in coparcenary

property: When a male Hindu dies after the commencement of this Act, having at the time of

his death an interest in a Mitakshara coparcenary property, his interest in the property shall

devolve by survivorship upon the surviving members of the coparcenary and not in

accordance with this Act:

Provided that, if the deceased had left him surviving a female relative specified in class I of

the Schedule or a male relative specified in that class who claims through such female

relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by

testamentary or intestate succession, as the case may be and not by survivorship.”

Explanation 1. For the purpose of this section, the interest of a Hindu Mitakshara

coparcener shall be deemed to be the share in the property that would have been allotted to

him if a partition of the property had taken place immediately before his death, irrespective of

whether he was entitled to claim partition or not.

Explanation 2. Nothing contained in the proviso to this section shall be construed as

enabling a person who has separated himself from the coparcenary before the death of the

deceased or any of his heirs to claim on intestacy a share in the interest referred to therein.

http://indiankanoon.org/doc/1746393/http://indiankanoon.org/doc/68038/http://indiankanoon.org/doc/386518/http://indiankanoon.org/doc/1011960/


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[15]Section 2 of Hindu Succession Act, 1965: Application of Act

(1) This Act applies-

(a) to any person, who is a Hindu by religion in any of its forms or developments including a

Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj;

(b) to any person who is Buddhist, Jaina or Sikh by religion; and

(c) to any other person who is not a Muslim, Christian, Parsi or Jew by religion unless it is

proved that any such person would not have been governed by the Hindu law or by any

custom or usage as part of that law in respect of any of the matters dealt with herein if this

Act had not been passed.

Explanation : The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as

the case

may be:-

(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas

or

Sikhs by religion;

(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or

Sikh

by religion and who is brought up as a member of the tribe, community, group or family to

which such

parent belongs or belonged;

(c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.

(2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall

apply to the members of any Scheduled Tribe within the meaning of clause (25) of article 366

of the Constitution unless the Central Government, by notification in the Official Gazette,


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otherwise directs.

(3) The expression “Hindu” in any portion of this Act shall be construed as if it included a

person who, though not a Hindu by religion is, nevertheless, a person to whom this Act

applies by virtue of the provisions contained in this section.

[16] Section 6 of Hindu Succession Act, 2005. Devolution of interest of coparcenary property.-

(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005*, in a

Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,—

(a) by birth become a coparcener in her own right in the same manner as the son;

(b) have the same rights in the coparcenary property as she would have had if she had been

a son;

(c) be subject to the same liabilities in respect of the said coparcenary property as that of a

son,

and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference

to a daughter of a coparcener:

Provided that nothing contained in this sub-section shall affect or invalidate any disposition or

alienation including any partition or testamentary disposition of property which had taken

place before the 20th day of December, 2004.

(2) Any property to which a female Hindu becomes entitled by virtue of sub -section (1) shall

be held by her with the incidents of coparcenary ownership and shall be regarded,

notwithstanding anything contained in this Act or any other law for the time being in force in,

as property capable of being disposed of by her by testamentary disposition.

(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act,

2005*, his interest in the property of a Joint Hindu family governed by the Mitakshara law,

shall devolve by testamentary or intestate succession, as the case may be, under this Act

and not by survivorship, and the coparcenary property shall be deemed to have been divided

as if a partition had taken place and,—


17/23



(a) the daughter is allotted the same share as is allotted to a son;

(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got

had they been alive at the time of partition, shall be allotted to the surviving child of such pre-

deceased son or of such pre-deceased daughter; and

(c) the share of the pre-deceased child of a pre-deceased son or of a pre -deceased

daughter, as such child would have got had he or she been alive at the time of the partition,

shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-

deceased daughter, as the case may be.

Explanation. —For the purposes of this sub-section, the interest of a Hindu Mitakshara

coparcener shall be deemed to be the share in the property that would have been allotted to

him if a partition of the property had taken place immediately before his death, irrespective of

whether he was entitled to claim partition or not.

(4) After the commencement of the Hindu Succession (Amendment) Act, 2005*, no court

shall recognise any right to proceed against a son, grandson or great-grandson for the

recovery of any debt due from his father, grandfather or great-grandfather solely on the

ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson

to discharge any such debt:

Provided that in the case of any debt contracted before the commencement of the Hindu

Succession (Amendment) Act, 2005*, nothing contained in this sub-section shall affect—

(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the

case may be; or

(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right

or alienation shall be enforceable under the rule of pious obligation in the same manner and

to the same extent as it would have been enforceable as if the Hindu Succession

(Amendment) Act, 2005 had not been enacted.

Explanation. —For the purposes of clause (a), the expression “son”, “grandson” or “great-

grandson” shall be deemed to refer to the son, grandson or great-grandson, as the case may

be, who was born or adopted prior to the commencement of the Hindu Succession

(Amendment) Act, 2005*.


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(5) Nothing contained in this section shall apply to a partition, which has been effected before

the 20th day of December, 2004.

Explanation. —For the purposes of this section “partition” means any partition made by

execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908)

or partition effected by a decree of a court.]

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Coparcenary in India_ It’s Past, Present and Future - Academike

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