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Daughter Rights After 2005 Ccoparcenary Amendment

Hindu Joint Family

  • It has a patrilineal common ancestor and all his lineal male descendants up to any generation, as well as the common ancestor's and lineal male descendants' wives, widows, and unmarried daughters. Decision making powers lies with the males. Head of the family is the last holder of the ancestral/joint property. It is presumed that every Hindu family is a joint family. Relocating to different cities won't change the fact that you are still a part of a joint family. You are still a claimant to the ancestral property. However, if a Hindu family is not joint at place of living, or does not share same kitchen, or does not preach the same deity. It does not imply that the Hindu family has ceased to be a joint family.
  • Existence of joint/ancestral property isn't a necessary condition precedent to the existence of a joint family. Though, it is rare to see a joint family with no ancestral/joint property. When a property is purchased, a person who wants his share to be a separate property, has to prove it. Otherwise, it would be presumed that the person is joint with the property Hindu Joint Family is not a separate legal entity but for tax purposes, Hindu joint family is also called/referred as Hindu Undivided Family. Only one PAN card is used to pay tax for the whole Hindu Joint Family/Hindu Undivided Family.
  • Unmarried daughters on marriage cease to be a part of her father's joint family and joins her husband's joint family. If a daughter becomes a widow or is deserted by the husband and returns to her father's house permanently, she again becomes a member of her father's joint family. However, her children don't become the members of her father's joint family and continue being members of their father's joint family. An illegitimate son of a male descendent would be a member of his father's joint family. A child in the womb until born is not a part of the joint family.
  • Conclusively, it can be determined that Hindu joint family is a wide body that does not follow a Four-degree rule, whose members enjoy only limited rights as their rights, interests, and shares are determined by the law of succession and whose extinction is rare and in which existence of a joint/ancestral property is not a mandatory condition.

Coparcenery Property

  • It is a narrow body of persons within the wide ambit of Hindu Joint Family. It consists/comprises of Father, Son, Grandson, Great Grandson. Father with three lineal descendants i.e. Four generations are considered as coparceners to the ancestral/joint property known as Four-degree rule. A person or a male descendant who is not a part of the four generations, would not be considered as a coparcener. All the coparceners have an interest in the coparcenary property by birth and have a right to ask for partition of the same. As per classical law, no female could be a member of thecoparcenary. In other words, females could not be coparceners to the ancestral/joint property. An illegitimate son of a male lineal descendant is a member of the Hindu joint family but he is not a member of the coparcenary property i.e., he is not a coparcener even if he is under the four generations.
  • Coparcenary under Mitakshara school arises during the lifetime of the father and his sons have right by birth i.e., Equal share of rights and property. In Mitakshara school, births and deaths of coparceners lead to fluctuation of interest. It passes the doctrine of survivorship i.e., if one dies, interest gets divided in the surviving members.

    So, the power of alienation either doesn't exist or is recognised for a limited extent. Females mostly have a status of dependence, they get maintained by the coparceners especially and they neither had controlling authority nor right by birth to the ancestral property till Hindu Succession Amendment Act, 2005. Rights conferred by the Karta are that he is the manager of the finances of the ancestral/joint/coparcenary property, he is the custodian of the surplus accumulated by the financial transactions as being the senior most member, there is a sense of trust developed so he acts as the trustee to the ancestral/joint property.

    There is a wide power od discretion for the coparcenary property. This is contradictory to the right to challenge alienation by the Karta, so, basically, alienation done fairly is not challengeable. He is the representative of the Joint Hindu Family and the coparcenary system. Karta has the right to enter into a contract, acknowledge the debts, pay the Hindu Undivided Family taxes.

    There is no legal remuneration for being a Karta but the members can decide upon themselves, if they want to pay the Karta for his work decided in the case of Jugal Kishore v/s CIT SC (1967). A daughter is born into the family, but she is no longer a member of the family when she marries. Other female members, on the other hand, become members of the joint family by marriage to lineal male descendants but are not born in this family.

    As a result, these ladies cannot be given a position that is determined by birth. Second, in order to be a Karta, he must not only be a man, but also a coparcener, as a guy who is not a coparcener cannot become a Karta. Partition only followed in Mitakshara school, fixes the share of each coparcener as it crystalises the fluctuating interest of a coparcener into a specific share in the joint family property or the ancestral property. There is an existence of unity of possession and unity of interest.

    It brings the joint status to an end as physical provision of the share and no longer a part of the joint family are the two consequences of the partition. Fixing interest by the way of partition basically means that separate property of the person demanding partition and forming a new coparcenary property with the same after birth of a lineal male descendant. After the birth of a son, such separate property is shared by the other members, thus, making it a coparcenary property.

    DE JURE means express demand of partition leading to severance of status/ unity of interest and DE FACTO means physical division of the ancestral/joint property/unity of possession.

    Partition can be broadly classified into two types:

    • Partial/individual partition: It is the division/partition of the joint property demanded by an individual.
    • Complete partition: It is the division/partition of the ancestral property demanded by all the persons of the family.
  • Partition of partible and impartible properties can be done by equitable distribution, adjustment of value by Karta to satisfy the partitioned share in terms of cash and kind,Hindu Succession Amendment Act, 2005adjustment of claims by clarifying all the demanded claims, division of mesne profits i.e., any addition to the value of the joint property is also to be divided, and if exist any past dealings, they are to be settled as well.
  • After partition, the person forms another coparcenary as he is alone the male member along with his wife, he shall be the sole coparcener till the time a son is born. As a son is born, the property gets shared between the son and the father.
  • Doctrine of Propinquity means that after a death, the property goes to nearer relatives with whom there is a relation by blood. This means Agnates (Blood relatives from the paternal side) are preferred over Cognates (Blood relatives from the maternal side).
  • There is an unobstructed heritage under Mitakshara school as there is right by birth or vested interest, there is no obstruction in getting the property/heritage. It devolves by the way of survivorship and not by law of succession. The devolution of interest in the ancestral/joint property in Mitakshara school is unobstructed in nature.
  • However, in Dayabhaga school, there does not exist any concept of coparcenary. There is no right by birth, ownership to the property can only be by death of the last holder of the ancestral/joint property.
  • Doctrine of Spes successionis means that there is mere chance of succession. In other words, Dayabhaga system does not follow the Four-degree rule unlike Mitakshara school. There does not exist any right to ask for partition of the ancestral/joint property during lifetime of the father/last holder. Members under Dayabhaga have tenancy in common as they are not the coparceners, they are just in line to inherit the ancestral/joint property after the death of the last holder. There is no fluctuation of interest as there in no vested interest as there does not exist right by birth.
  • Doctrine of Religious Efficacy also known as PIND DAAN, in order to pay homage to the late ancestor, it rejects the concept of preference of agnates over cognates. In Dayabhaga school, each coparcener has a defined interest, father can alienate as the last holder has the absolute control, power, ownership of the ancestral/joint property.

    Under Dayabhaga school, after the death of the last holder of the ancestral/joint property, the heirs to such property become the coparceners to the property and females also get rights over the ancestral/joint property. There is an obstructed heritage under Dayabhaga school as right to property which accrues not by birth but by death of the last holder.

    It's not a vested right, it's a contingent interest. So, every person in the line who wants to get the property is obstructed by happening of an event because they don't have a right by birth. It devolves by doctrine of Spes successionis and not by doctrine of survivorship.
  • Conclusively, it can be strongminded that coparcenary is a narrow body that follows the Four-degree rule whose members enjoy wide rights as there is doctrine of survivorship that prevails over doctrine of Spes succionis and whose extinction is possible when all the coparceners are dead, and in which existence of a joint/ancestral property is a mandatory condition.

Types Of Property Under Hindu Law:

  • Coparcenary property/ancestral property

    • It is an ancestral property from the common ancestor.
    • Doctrine of accretion means the addition to the value of ancestral/joint/coparcenary property like property acquired with the aid of ancestral/joint/coparcenary property.
    • Doctrine of detriment means deduction to the value of ancestral/joint/coparcenary property like property acquired at the cost of ancestral/joint/coparcenary property.
    • Doctrine of blending means usage of a separate property voluntarily to blend with the ancestral property.
  • Separate property

    • Doctrine of blending means usage of a separate property voluntarily to blend with the ancestral property.
    • It is the property inherited by the way of obstructed heritage. A self-acquired property or a property given as a gift is called separate property. Small portion of an ancestral/joint/coparcenary property given as a gift to the unmarried daughter in her marriage by the father is considered to be a separate property of her own. Separate property is to be shared by the next male descendants as coparceners. Benefits of insurance policies enjoyed by the heirs after the death of the last holder of the property are considered their separate property. Income/grants acquired by skills/talent are to be considered as separate property including grants from the government.
    • Sole surviving coparcener after death of other coparceners does not get the authority and control over the whole property. However, he is liable to maintain wives, widows and unmarried daughters. Maintenance, education expenses, medical expenses, marriage expenses, funeral expenses are borne by the sole surviving coparcener.

Case Law:
  • Magunti v/s Lingaraj, Air 1956 Ori 1.
    It was believed that under some unusual circumstances, a female may function as a Karta, and her judgement would be binding on all family members

does not appear to be correct, as she is neither a coparcener nor a holder of coparcenary property. She can serve as a guardian on behalf of a minor coparcener, but this does not make her the Karta. As a result, a mother cannot be a Karta.

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