The estate of coparcenary property under Hindu law is discussed in this article.
It describes why the 1956 Hindu Succession Act was passed and explains its
suppression of the fundamental right to equal rights established in Article 14
of the Indian Constitution and discrimination against women based on their sex.
It discusses the evolution of legislation in relation to women's coparcenary
rights over the years. Also given are the cases legislation that are important
for understanding the impact of the 2005 Hindu Succession Act.
There was a time when there was no specific rule governing the transfer of
property among all Hindus. Various rules were developed depending on caste or
customs, and these laws differed depending on the locality. The Hindu Succession
Act 1956 was established to create a common law that would govern with all kinds
of coparcenary birthright given under Hindu law.
The Hindu Succession Act of
1956 established the survivorship rule, which states that property passes to the
surviving person only after the ancestor dies. This rule governed the
inheritance of ancestral property. Only the male heirs who are within three
degrees of the coparcener were granted coparcenary rights for such property.
They were referred to as the ancestor's lineal descendants.
The Hindu Succession Act of 1956 was the first to deal with the Hindu law of
succession of ancestral possessions. It formalized Hindu law, stating that
ancestral property can only be gained by male direct descendants of a common
ancestor within a joint Hindu family. The Act was based on the belief that
because a woman will eventually marry and become a member of another family, she
would not be legally labelled a coparcener.
Despite having absolute ownership of
their own property, the women were unable to assert coparcenary rights over the
family estate. As a result, the Act was blatantly discriminatory against women
based on their sex, also it violated their fundamental right to equality
guaranteed by Article 14 of the Indian Constitution.
To abolish the Mitakshara Coparcenary's discrimination against women, Indian
legislators realized they needed to pass a gender-unbiased statute. An Act that
does not subjugate women and gives them equal rights to their ancestor's land.
As a result, the Hindu Succession Act, 1956 was therefore amended. The Hindu
Succession (Amendment) Act, 2005 went into effect on September 9, 2005.
Amendment Act made it possible for women to be legal common-heirs and receive
share in coparcenary property in the same way as males. It ended gender
discrimination and ensured that women's fundamental right to equality was not
breached in this matter. Section 6 of the Hindu Succession Act, 1956, was
altered to move on with the reform. It stated that as from this date of
commencement of the Amendment Act, 2005, the daughter shall have a right to the
share in coparcenary property by her birth, like the son has. The girl will be
held to the same obligations as the son.
Statement About The Problem
Coparcener Under The Hindu LawCoparcener is a word used in Hindu succession law to describe a person who
inherits a legal right to his ancestral property because of his or her birth
into a Hindu Undivided Family (HUF). Any person born into a Hindu family becomes
a coparcener by birth, according to the Hindu Succession Act of 1956.
Coparceners have the right to seek for the property to be divided and for the
shares to be distributed. Members of the Hindu Undivided Family such as
daughters and mothers could claim maintenance from HUF property, also a stake in
the HUF's property when the HUF was divided between them.
When the daughter
marries, she ceases to be a member of the father's HUF and so loses her claim to
maintenance as well as a stake in the HUF's property if the property is
partitioned after her marriage. Female members of the HUF were not allowed to
become Kartas of the HUF and administer its business since only a coparcener was
allowed to do so.
Daughters Right To Property Before And After 2005Before 2005
The property was fully held and handled by the male members of the family in the
ancient Hindu joint family structure. Men oversaw the entire family's property
and had complete authority over it. Women were not given property rights and
were not allowed to participate in the property transaction process. The woman
had no right to petition for division or a share of the family property under
the Mitakshara system. The only way she could have a piece of the property was
if her husband and her sons split up. Women, on the other hand, did not have
this right under Dayabhaga. It was discovered that under both regimes, women
lacked the ability to assert any claim to the property. They were viewed as
simple recipients of the men's institutions and traditions, and their judgments,
needs, and aspirations were strictly governed.
In 2005, on 9th September 2005, Section 6 of the Hindu Succession Act 1956,
concerning the coparcener's law in HUF land was changed. This modification has
placed the girls on an equal footing with the sons about HUF coparcenary
privileges. As a result, the daughter has all coparcenary rights, including the
power to request that the property be divided and to be a Karta of a HUF.
However, coparcenary right only applies to the girls born in the family. Other
women who come into the family because of marriage continue to be treated simply
as members. They do not therefore have the right to request a partition, but
they are entitled to maintenance and equity during and after the partition.
Married Daughter And Her Right To PropertyUnder the Hindu Succession Act 2005, the daughter stops being part of her
parental HUF after marriage and remains a coparcener. After marriage. Therefore,
she has the right, if she happens to be the eldest coparcener of her father's
HUF, to apply for the split of the HUF property and to become a Karta of the
HUF. Even in the event of the married daughter who has died her children shall
have the right, if she were living on the day of partition, to the shares she
would have gotten.
In the absence, the grandchildren's will be entitled to the
shares the daughter would have received on the division if no child of her is
living on the day of division. Interestingly, while she is alive, her daughter
is unable to donate its portion in the HUF property but is completely able to
distribute it by will in the HUF property. If a will is not ready, its portion
in the joint property shall not be transferred to other members of the HUF at
their death but shall be transferred to their legal heirs.
Parental Side Kin And Hindu Widow- Inheritance Of Property
Family members of a Hindu Widow's parent cannot be considered as outsiders.
The Supreme Court has decided that her property could be transferred to them
pursuant to the Hindu Succession Act. The SC also held that the heirs of a Hindu
woman's father are subject to the right to succession of her property. Following
an order by the High Court and the trial court which permitted a childless widow
to enter a family settlement to transfer her belongings to the son of her
brother, the SC ruled that the review of Section 15 of the Hindu Succession Act
shows that the father's heirs are covered by the successors. 
The Indian judiciary has passed many landmark judgements in the field of Hindu
daughters and their right to property.
Prakash & Ors. V. Phulawati & Ors.Here the Supreme Court of India has stated that, as of 9 September 2005 and
without regard to the date of their birth, the rights of coparceners under the
Amendment Act 2005 shall apply to the living daughters of the living
coparceners. It is said that the daughter would not have a right to inherit
coparcenary property in such a case if the coparcener's father died before 9
September 2005. In the present case, the law on the amendment law, 2005, was
interpreted. It stated that if the coparcener was dead before to the beginning
of the Act, that Act shall not apply. This indicates that the survival rule is
applicable in such instances and the child is not entitled to coparcener
Danamma V. Amar SinghThe Hon'ble Supreme Court of India stated in this matter that when the father is
a coparcener who died before 9 September 2005 and the male-coparcener has been
awaiting a preliminary complaint for partition under any court of law, then the
coparceners are eligible to partake. The Court noted that the provisions of
Article 6 of the Amendment Act are retrospectively applicable and give the
daughter absolute coparcener powers since birth.
This ruling contrasted with the Phulavati judgement. There was therefore a contradiction between the above
judgements and diverging issues concerning a child's coparcenary rights in the
inheritance of her deceased father's coparcenary property. The Hon'ble Supreme
Court of India gave rise to the appeal process.
Vineeta Sharma V. Rakesh Sharma & Ors. The Hon'ble Supreme Court of India has delivered a 122-page judgement on the
matter in question. The Court stated that, in terms of becoming coparcener,
women have been subjected to past injustice and must have equal rights
regardless of the future or background application of the amended Act, 2005.
Section 6(1)(a) of the Amendment Act, 2005 sets out the birthright under
Mitakshara coparcenary of a coparcener i.e., the 'unobstructed heritage' for the
The court was of the view that the coparcener has a
birth right to the ancestral property and, as of the date of modification, it is
therefore not needed for the father to exist. The reason is that the daughter's coparcenary rights are not blocked by her birth. Thus, on the date the Amendment
Act, 2005, as stipulated in Phulavati's case, the concept that father
(coparcener) and child must be alive was overturned.
Section 6 of the 2005 Amendment Act was ruled by the Hon'ble Supreme Court of
India to apply retroactively. The Court explained the notion of the retroactive
application of the 2005 Amendment Act that the Act permits women to profit from
the succession based on their birth. In this instance, even though the father
died before the enactment of the Hindu Succession (Amendment) Act 2005,
daughters were determined to have equal rights to their own property in
co-parcenary property. It further held that as on 9 September 2005, the rights
contained in the amendment apply to live coparcener daughters, regardless of the
date of their birth.
The creation of female inheritance laws aims at the discrimination and unjust
treatment and practices in respect of women's rights of legacy that have been
established since Indian times. The 2005 amendment permitted women to have same
rights of co-parceners as males in India. However, even now in India, despite
these breakthrough acts and modifications, equal rights for women are not
available at large.
The report underlined the patriarchal societal structure
that restricted women from possession and their impact on women's socio-economic
status. Social conditioning and structure may still be seen today as women
continue to be discriminated against by receiving legal share of family property
having strong roots in India's historical background. In a nation like India
where people believe, follow discriminatory and unfair customs and practices,
the successful implementation of the Hindu Succession Act, 2005 continues to be
a problem. In other words, equitable property rights for women are a critical
way of promoting women's empowerment and enhancing their status in society. The
relationship among women inheritance rights and socio-economic status is
Section 6 provisions were deemed to be future-oriented. The provisions of
replaced Article 6 of the Hindu Succession Act of 1956 give the daughters born
before or after modification the status of coparcener in a way which is the same
as the son with the same rights or obligations. The rights to the disposition,
alienation, partition, or testamentary provision made before 20 December 2004,
may be exercised by the daughter who was born earlier with effect from 9.9.2005
as under provisions of Section 6 (1).
As the right to be born into the coparcenary, it is not necessary for the coparcener's father to live on 9
September 2005. The formal fiction of the split created in 1956, as initially
imposed by the proviso of Section 6 of the Hindu Succession Act, did not lead to
actual partition or disruption. The goal of this fiction was to determine a
share of a deceased coparcener only if a woman's heir, a class I heir or a
husband's relative were survived as defined in an annex to the Act of 1956.
The Supreme Court further concluded that, regardless of the date on which these
daughters are born, the rights under this amended law apply to living daughters
of live coparceners on 9 September 2005. According to its recent decision, the
2005 Amendment Act was retrospectively declared, and even though the daughter's
father died before 9 September 2005, children are accorded equal rights over
ancestral property of their dads.
The terms of Section 6 substituted must be
fully implemented. However, the daughters are to have share of the coparcenary
in a pending procedure for a final decree or in an appeal, which is equivalent
to that of a son. In the absence of a request for oral partition, given the
rigor of the explanation in Section 6(5) of the Act of 1956, as the legally
recognized mode of partition carried out by a partition deed registered in
compliance with the 1908 Registration law, the plea for oral partition cannot be
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