Copartioners means the division of property between co-owners or joint owners
or parties of inheritance in a Hindu Joint Family is known as coparceners. They
are the person who has a birthright to parental property and also has a right to
partition. A coparcenary including a common ancestor has succession up to four
degrees of lineal descent.
It is derived from the concept and practice of the Hindu Undivided Family (HUF).
The concept of coparcenary is dealt with within the provisions of the
Hindu Succession Act, 1956. This concept is originated from ancient Hindu
jurisprudence and became an essential feature of Hindu Law.
Schools Of Law
Earlier there were two schools of thought to administer and regulate Hindu laws:
Mitakshara School: It is a community interest under which everybody owns a uniform interest in
the property. And upon the death of a person property can be divided into
all the sons including grandsons. It is not necessary that upon the death
of a person, the property is to be divided, it is decided by the community.
In this school, the property is not divided between wife and unmarried
daughter upon the death of the successor. Karta of the family has to render
a full account. Only Apratibandhaya or unobstructed property is inherited by
Dayabhaga School: It is one of the schools belonging to Hindu Law where sons have an absolute
share after the father. But the other lineal sons cannot get any
share. They will get the property upon their own father's death. In this
school, if one of the members of the successor dies his wife and unmarried
daughter can acquire the property known as succession per stripe. Karta
renders full account only at the time of partition of the property. Both
Apratibandhaya, as well as Sapratibandhaya property, can be inherited by
Past, Present, And Future Analysis
- Hindu Law of Inheritance Act, 1929 was the first legislation that stated
that three female heirs son’s daughters, granddaughters, and sisters could
inherit the ancestral property.
- Hindu Women Right to Property Act, 1937 brought major changes in
the customary laws and schools of thought. It focused primarily on the
rights of widows and divorces.
- Earlier in Section 6 of the Hindu Succession Act, 1956 in which
daughters were not having any right over the property. The doctrine of
Survivorship was applicable which states that sons are the coparceners by
birth, but the property maintains the women. Women can only become Karta of
the family in certain cases.
- But after the amendment of the Hindu Succession Act, 2005 daughters
are considered coparceners by birth. Sons and daughters both have equal
rights over the property. The doctrine of Survivorship is no more valid. And
women can become Karta of the family. Even if the father of a daughter died
before 2005, she is entitled to an equal share.
- Article 14 of the Constitution of India was given importance and
challenged the fundamental principles of Hindu coparcenary law. Equal rights
were given to married and unmarried daughters.
- State of Maharashtra V. Narayan Rao Sham Rao Deshmukh And Ors (1985) 2 SCC
In this case, it was stated that a Hindu coparcenary is a narrower body than
the joint family. Only males who acquire from birth an interest in the joint
or coparcenary property can be members of the coparcenary or coparceners.
Coparceners consists of the male members of the joint family and his sons,
grandsons, and great-grandsons. It includes one common ancestor and not more
than three male descendants.
- Sathyaprema Manjunatha Govda V. The Controller of Estate Duty (1997) 227 ITR 1 SC
It was stated by the court that while a son, grandson, and great-grandson is
a coparcener, the great-great-grandson cannot be included in the coparcenary
- Panduram V. Panduram Pandurang
In this case, it was held that an adult female of the Hindu Joint Family can
act as a Karta.
- Shyama Devi And Ors V. Manju Shukla And Anr. on 12th September 1994
Section 23 of the Hindu Succession Act, 1956 women, did not have the right
to partition but after the amendment of the Hindu Succession (Amendment)
Act, 2005 has given equal rights to the daughters in the coparcenary
property as the sons already have.
- Collector of Madura V. Mootoo Ramalinga Sethupathy (1868) 12 M.I.A. 397
It was stated that a widow has the authority to adopt a son without her
- Prakash and Ors V. Phulavati and Ors on 16th October 2015
In this landmark case, it was declared that only living daughters of living
coparceners have the right over the property. There was a dispute between
brother and sister concerning the share of ancestral property. So, Phulavati
filed a case claiming the property of her father. Court expressed that there
is a retrospective effect that it will act backward and take away all the
rights. Hence, Phulavati cannot be considered a coparcener because her
father died much before 20th December 2004.
- Danamma @ Suman Surpur V. Amar on 1st February 2018
Danamma claimed one by a fourth of the share of the property of her father
who died in the year 1991. But the brothers of Danamma stated that she is
not entitled to claim the property because:
- the act was not amended at the time of death of the father.
- then she was already married and given dowry.
High Court stated taking Prakash V. Phulavati as a precedent that Danamma will
get the property even if her father died in the year 2001.
- Vineeta Sharma V. Rakesh Sharma on 11th August 2020
In this case, the person died before the commencement of the act on 20th
December 2004. But this is irrelevant because the act is acting retroactively.
It will not take away the rights and privileges already acting. By overruling
the judgment of Prakash V Phulavati it was concluded that daughters are entitled
to property by birth.
After the amendment, we must say it is fair enough to give equality to every
sphere of law. The women can now become coparceners of the property. The judges,
however, were well aware that a change in law only a stepping stone to a
broader, more holistic shift in social morality. Therefore I would like to
conclude by saying that the law has changed, society must too.
Award Winning Article Is Written By: Shambhavi Shree
A 4th-year law student at KIIT School of Law, Bhubaneswar pursuing a B.B.A.LLB.
Authentication No: JL34618538369-01-0721