THE CONCEPT OF COPARCENARY
Coparcenary is a legal term that refers to Hindu succession law. It refers to a person who, by birth, is capable of assuming a legal right to his ancestors' property. It means the "unity of title, possession, and interest." The Coparcenary rights is dealt within the Hindu Succession Act 1956 and since then has undergone many amendments . The Amendment of 2005 is marked as a watershed in the trajectory of the law of inheritance in India for women .It steps to elevate the economic position of the women and to bring equality among the sexes.
In a Hindu Undivided family there is a common ancestor who is the eldest and three generations of his descendants . The act as we can see was patriarchal in nature earlier but through recent amendments it has solved the anomalies .
Earlier there were two Hindu schools of thought which regulated and administered the Hindu laws
The Mitakshara School – Under this the son had the right by birth in the property of the joint family . It essentially meant that the property should be given to the inheritor who could ensure the family's survival in the future. There is a sense of unity ,no one had a fixed portion because the family's size fluctuates due to births and deaths.
The Dayabhaga School – In this the law of inheritance was based on principle of religious or spiritual benefit and the son did not have an automatic ownership . Under this the females had also the right to demand for the portion of the property . The sons acquire property as heirs and not as survivors.
ANALYSIS OF THE ACT
The Hindu Law of Inheritance Act of 1929 was the first piece of legislation that indicated that the ancestral property might be inherited by three female heirs: son's daughters, granddaughters, and sisters.
The 1937 Hindu Women's Right to Property Act resulted in significant changes in customary laws and schools of thought. It was largely concerned with widows' and divorcees' rights. It had affected coparcenary laws , partition laws and laws of property , inheritance and adoption. . Prior to this there was no codified law that resolved the disputes using customary practices . This act mainly aimed to achieve gender equality .
The Hindu Succession Act , 1956 aimed at providing equality as stated under article 14 of the constitution of India . It helped to elevate the status of women in the society by providing them to inherit the share of their father’s property . Daughters were declared as legal heirs and could receive shares in their father’s property The family's ancestral property would still be legally inherited by the family's son, with no rights to it for the daughter, as per the rules of survivorship. Inequality persisted, but at a slower or slower rate.
Previously, daughters had no entitlement to the property under Section 6 of the Hindu Succession Act, 1956. The Survivorship Doctrine was used, which holds that sons were the coparceners by birth, but property maintains the women. Through this amendment daughters, both married and unmarried, were given equal rights over the coparcenary as the sons of the family, by birth. Only in limited circumstances can a woman become the family's Karta.. Both sons and daughters enjoy equal ownership of the land. The Survivorship Doctrine is no longer valid. Women might also become the family's Karta. The core concepts of Hindu coparcenary law were challenged by Article 14 of the Indian Constitution. Any property to which she is inherently entitled would be under coparcenary ownership and not subject to testamentary disposition. The amendment does not, however, guarantee a completely equal opportunity because there are still elements that have not been brought up to date with equality, such as the fact that after her death, all of her property will be owned by her husband's family.
Difference between the rule of succession and rule of survivorship
The Hindu succession laws was amended in 2005, and the rule of succession now takes precedence over the law of survivorship. Prior to this amendment, the Karta's daughters and other female relatives were only considered heirs and were only entitled to their share of their partition after the Karta died, whereas all male members were eligible to acquire their shares even before the Karta died due to bearing the rights of coparceners, which was the rule of survivorship.
The rule effectively stated that only the family's sons may inherit property through coparcener privileges because they were considered responsible for the survival of family name. While the rule of succession states that property is passed down in the order of birth, regardless of gender. This rule was introduced by the 2005 amendment and thereby included the daughters of the family within the coparcener rights.
State of Maharashtra V. Narayan Rao Sham Rao Deshmukh And Ors (1985) 2 SCC 321
According to this case, a Hindu coparcenary IS a narrower body than a joint family. Members of the coparcenary or coparceners can only be males who have an interest in the joint or coparcenary property from birth. Coparceners are the joint family's male members, as well as their sons, grandsons, and great-grandsons. It has one common ancestor and a maximum of three male descendants.
Sathyaprema Manjunatha Govda V. The Controller of Estate Duty (1997) 227 ITR 1 SC
The court stated that while a son, grandson, and great-grandson are all coparceners, a great-great-grandson cannot be included in the coparcenary estate.
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 September 12, 1994, women did not have the right to partition under Section 23 of the Hindu Succession Act, 1956, but after the revision of the Hindu Succession (Amendment) Act, 2005, daughters now have the same rights as sons in coparcenary property.
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 husband's consent.
Prakash and Ors V. Phulavati and Ors
According to this landmark case , only living daughters of living coparceners have the right to the property, . The dispute was about the share of ancestral property between the brother and sister . As a result, Phulavati filed a lawsuit to seize her father's property. The court stated that there is a retrospective impact, meaning that it will act backward and revoke all rights. As a result, Phulavati cannot be a coparcener because her father died before December 20, 2004.
Danamma @ Suman Surpur V. Amar
On 1st February 2018 Danamma had claimed one fourth of the property of his deceased father who died in 1991 . Her brothers said that she cannot claim property because :
The act was not amended at the time of their father’s death .
She was already married and given dowry .
Therefore the High Court held that Danamma will get the property even if their fatger died before the amendment .
Vineeta Sharma V. Rakesh Sharma
on August 11th, 2020
The person died before the act came into effect on December 20, 2004. However, because the statute is retroactive, this is irrelevant. It will not revoke any rights or privileges that already exist. By overturning the Prakash V Phulavati decision, it was determined that daughters had a right to property by birth.
Justice A.Mishra's recent Supreme Court decision in Vineeta Sharma v. Rakesh Sharma put to rest inconsistencies in the interpretation of the 2005 Amendment to the Act of 1956. When the father was living on the day the amendment went into effect, the issue of coparcenary rights for daughters arose. The revolutionary enactment establishes a daughter's coparcenary rights from the moment of her birth. As a result, even though the legislation took effect on a specific day, it is retroactive because it is linked to the daughter's birth date. This legislation made no discrimination in the rights of the sons and daughters and both have the right to property from their birth .
After the enactment of the 2005 amendment in the Hindu Succession Act 1986 , women have received significant benefits in the society. All the daughters are now the coparcenary owners of the family property and have equal rights as the sons , unlike the past times when they were dependant on the males to get their rights . The ability to assert their rights in a respectful manner strengthens their foundation and gives them with emergency financial support, which can assist increase their confidence and possibly more. Women in the family can now hold the post of Karta, or family head, defying all gender conventions. This increases their strength and social value, both of which are important in today's culture.
Nandita Chaurasia , a first year student from Symbiosis Law school , Noida