INTRODUCTION
In a world where gender equality is emphasized, legal frameworks that were made back then are supposed to evolve and now should reflect the changing dynamics of society. One such change that was meant to be looked up again was of recognition of daughters as coparceners in the family-owned ancestral property. This change was made under Hindu law after the amendment of 2005, which now looks towards gender equality within the family inheritance legislation.
In this blog, we will be looking into the concepts related to coparcenary, daughters’ rights in inheritance, legal and historical background, and cases related to the same.
CONCEPT OF JOINT FAMILY
A joint family is an extended family which consists of two or more generations living together with their spouses and children, as a single household. On similar lines in the Hindu law school ‘Mitakshara’, a joint family refers to only the male member of the family and extends to his son, grandson, great-grandson, etc.The son by birth acquires an interest in the ancestral property and they have a collective coparcenary right over the property of the joint family. On the other, hand under the ‘Dayabhaga’ school son does not acquire the property by birth but acquires it later after the demise of his father. [1]
CONCEPT OF FAMILY UNDER MITAKSHARA SCHOOL OF JOINT FAMILY
Under the Mitaksahara school of joint family, the idea of coparcenary was mainly that male members like sons, grandsons, and great-grandsons would have coparcenary rights. Female members will not be coparceners but always be members of the family. Under Mitakshara, the father and his four lineal male descendants can be coparceners.[2]
For example, if there is a male member A in the family then the coparcenary rights will be limited to only four generations which are B,C, and D. These coparcenary rights will keep on fluctuating, suppose in a family of L, M, N, where in L has to sons M and N, each of them is entitled to get 1/3rd of the family property but if L dies then shares of L and M becomes half each, similarly if L gives birth to one more son that is O then the shares of each will be 1/4th each. Therefore there is variation in the number of coparceners and share of property due to the birth and death of the male family member under the Mitakshara School of Hindu law.
WHO IS A COPARCENER AND WHAT IS A COPARCENARY?
The concept of coparcenary came into existence a long time ago. In layman’s terms, coparcenary refers to a property wherein multiple people are inheriting the same property and each person owns an undivided transferable interest in the property. A coparcener is a person who shares equally with others the inheritance of an undivided state. Coparcenary is also known as joint ownership. There are two types of properties
- Ancestral property: In short this is a kind of property that is passed on from generation to generation, it is also called as coparcenary property.
- Self-acquired property: Self-acquired property as the name itself suggests is property that a person himself acquires in his lifetime using his means and this type of property can be divided in any manner according to the wish of the owner through the will.
Coparcenary rights are subjected to only and only the ancestral property, these rights will be entitled to only the male member and that too till four generations only, though the female members of the family that is wives and daughters were not the coparceners there was recent amendment of 2005 under Hindu Succession Act 1956, that made the daughters also a coparcener of the property.
Under Hindu law, a person who possesses any interest in the ancestral property is not the sole owner of it, his son grandson, or great-grandson also possesses an interest in the ancestral property by birth(as mentioned by Mitakshara school), now even the daughters have the same right.
AMENDMENT OF 2005 UNDER THE HINDU SUCCESSION ACT,1956
The Hindu Succession Act brought an egalitarian amendment on the 9th of September, in the year 2005. Firstly, let us understand the application of the Hindu Succession Act it applies to Hindus, Buddhists, Jains, and Sikhs. This act lays down a uniform and comprehensive framework for inheritance and succession. As per the said law only male members and not female members, could classified as coparceners. This was known as the Survivorship rule, which was highly criticized at that time. To rectify this, in 2005 an amendment was passed to the Hindu Succession Act.
WHAT CHANGES DID THE AMENDMENT MAKE?
The amendment cancelled the survivorship rule. It introduced testamentary and intestate succession. Testamentary succession is succession resulting from a legally executed testament a self-acquired property, it can be divided through a will. While an interstate property is a property which is for ancestral property and now daughters will also be given an equal right. So, in the 2005 amendment, if any person dies before making a will or for the ancestral property, the coparceners will be widows, sons, and daughters these will be equal rights. Daughters were given equal rights in the self-acquired property but now they are also given equal rights as a coparcener in the ancestral property as well. This is mentioned under the amendment of section 6 (3) of the Hindu Succession Act, 1936 [3]
CONFUSION DUE TO THE AMENDMENT:
Though the amendment took a step towards gender neutrality, it led to some concerns such as whether was it necessary that the person must be alive or not at the time of the ruling that is on the 9th of September 2005. Questions regarding its retrospective application were asked.
JUDGMENTS RELATED TO THE 2005 AMENDMENT [4]
- Prakash and others v. Phulavati and others ( 2006):
In this case, it was questioned whether is it necessary for the father to be alive on the date that is 9th September 2005, for the daughter to get the property. So in the present case the bench of Justice Anil Dave and Justice AK Goyal, held that the father must be alive, living father’s property to the living daughter.
- Danamma Vs Amar (2018):
In this case, the Supreme Court of India by the bench of Justice AK Sikri and Justice Ashok Bhushan, held that even though the father died before the amendment of the act the daughter is entitled to get the property, the law is optionally retrospective.
NOW, the above mentioned both the judgments conflicted with the coparcenary rights of the daughters.
- Vinneta Sharma vs Rakesh Sharma (2020):
The bench of Justice Arun Mishra, Justice Abdul Nazeer, and Justice MR Shah. This case cleared the confusion regarding the coparcenary rights of the daughters. The court held that sec. 6 of the act shall be applied retrospectively, saying that now daughters will have coparcenary rights since birth itself.
CONCLUSION
Recognizing daughter’s rights on ancestral property makes it a significant step towards gender neutrality within a legal framework. This step led to avoidance of the gender biases and also a step forward toward equality. This amendment not only changed the legal framework but the led to changes in the societal views on gender roles. The law now provides a step toward a departure from the patriarchal family towards more neutral families. Indeed the “Daughters as a Coparcener is a step towards gender neutrality’’.
Author(s) Name: Mansi Mandawgad (ILS Law College, Pune)
Reference(s):
[1]PreethiNitin, Mitakshra School of Law,
[2] Hindu joint family under Mitakshra and Dayabhaga<https://www.ijlmh.com/wp-content/uploads/2019/04/Short-Note-on-Hindu-Joint-Family-Under-Mitakshara-and-Dayabhaga.pdf> accessed on 19 March 2024
[3]Hindu succession act , 1956 <https://lddashboard.legislative.gov.in/sites/default/files/A1956-30.pdf>accessed on 19th March 2024
[4]R Sai Gayatri, ‘ Evolution in daughters rights on property in India a step towards equality’ https://blog.ipleaders.in/evolution-daughters-right-property-india-step-towards-equal-rights/> accessed on 19th march 2024
