SUBJECT- FAMILY LAW II

TOPIC - COPARCENARY

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INTRODUCTION –

It is safe to say that our society has been predominantly patriarchal in nature and it
revolves around the male centric societal structure. Earlier, man was given preferential
rights over women with respect to property, both movable and immovable. However,
The Indian society has considerably changed over last few decades. Gone are the days
when women had limited ownership in India. Some significant progressive steps have
been taken by the government and the judiciary in recent time, which eventually
resulted in giving absolute ownership to women. The property rights for women i.e.,
right to inherit, use and dispose of property is a recent development in our country.
There are diverse property laws in India. The prominent property laws include Indian
Succession Act, Transfer of Property Act, and Partition Act. The Hindu women’s right to
property Act, 1937, was an act which specifically dealt with Hindu women’s right to
property, later it was abolished in 1956. It is vital to understand the status of women’s
right to property before and after codification of law. The Hindu succession Act 1956
and what changes were made in the 2005 amendment act, And the important cases
related to women’s right to property in India.

BEFORE THE CODIFICATION OF LAW –

In the Vedic period, i.e., when the Vedas which is considered to be to oldest and most
sacred text in Hindu philosophy were composed. The status of women was equal to that
of man in every possible way. Women were treated at par with men economically. On
the other hand, Manu smriti in matter of women’s right to property is in absolute
contradiction to the Vedic scenario. According to Manu, Property should not be inherited
or granted to the wife, the slave or the minor son. Because of this reason daughters
also faced similar disadvantages and discrimination with regards to inheritance of
property.

THE MITAKSHARA AND DAYABHAGA SYSTEM OF INHERITENCE –

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Before the Hindu marriage act or the Hindu succession act was codified, the everyday
lives or different matters relating to Hindu society, i.e., marriage, succession, partition
etc., were governed by the Hindu schools of philosophy i.e., The Mitakshara and
Dayabhaga schools. Both the schools are considered very significant in Hindu society
and they share different views with respect to joint family, coparcenary and property
rights for women.
Mitakshara School of thought – It is a commentary on Yajnvalkya Smriti written by
Vijnaneshwar. It applies to the whole of India except in West Bengal and Assam. This
school of thought is sub-divided into Five schools.
· Banaras
· Mithila
· Maharashtra
· Punjab
· Dravida or Madras law of school.
These schools come under the Mitakshara school of thought, they have same
fundamental principle as that of Mitakshara. However, there are certain minor changes
and are applied differently in different circumstances.

Mitakshara School of Law on female coparcenary –

The right in the ancestral property arises by birth. And as per the Mitakshara school, a
joint family refers and includes both the male and the female members of the family. But
the females could not be a coparcener under the Mitakshara coparcenary. Only the
males can be regarded as coparceners i.e., son, son’s son, son’s son’s son (it is
restricted to three generations). And hence, they become a coparcener in the joint
family. Females were not regarded as coparceners under Mitakshara school Until, the
Indian succession act 2005, came into force and females were given the right to
become coparceners.

Dayabhaga School of thought –

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It is a commentary/ Digest on Yajnavalkya Smriti written by Jimuthavana. The
Dayabhaga school of thought prevails in West Bengal and Assam. It differs from
Mitakshara school of thoughts on the matters of inheritance and joint family.

Dayabhaga School of Law on Female coparcenary –

The right in the ancestral property does not arises by birth. It arises only after the death
of the last owner of the property. Unlike Mitakshara school of law, Male and females
both are also considered to be a coparcener in the property. Under this school females
have equal rights to that of males but the coparcenary comes into existence only after
the death of the father.

The meaning of Coparcenary property under Hindu Law –

The Indian Succession Act 1956 –

The Indian Succession Act was a progressive act which came into effect from 17th June
1956. This act abolished The Hindu Women’s Right to Property Act, 1937, which was
enacted in the name of giving preferential interest to women with regard to ancestral
property. Nonetheless, this act only provided limited estate to women. The Indian
succession act brought many new reforms. Unlike the Hindu women’s right to property
act, this act gave absolute ownership to women. However, certain sections and
provisions were seemed to be discriminating. Because of which there was difficulty in
granting equal property rights to women.

Some important sections of the act –

Section 6 – Section 6 was largely based on the principal of survivorship from Mitakshara
school. According to this section, if a male Hindu died after the commencement of this
act, his interest in Mitakshara coparcenary shall go to the surviving members of the
coparcenary and not in accordance with the act. However, a proviso was added to
preserve the interest of female child. It stated if the deceased left behind a class I
female relative (daughter, widow or mother, etc.) or a male relative claiming through
such female kin, his interest would go to them by testamentary or intestate succession

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and not by survivorship. This particular section brings everything to square one. The
particular reason for which this act was enacted was not fulfilled. It did not solve the
problem of convention discrimination against women. Although it gave absolute owner
to women.

The 2005 Amendment Act –

The Indian Succession Act 2005 came into effect from September 9. According to the
law makers the object and reasons behind the amendment was that, the said act, does
not include females as coparceners. The ancestral property is inherited by the rule of
survivorship and hence, it does not recognize female coparcenary and females cannot
inherit property as the same way as men can. It said; “The law by excluding the
daughter from participating in the coparcenary ownership not only contributes to her
discrimination on the ground of gender but also has led to oppression and negation of
her fundamental right of equality guaranteed by the Constitution....”. Therefore, the 2009
amendment act was solely based on removing section 6 of the Indian succession act
so, the females could have the equal right for participating in the coparcenary ownership
by birth, in the same manner as a son does.
However, the amendment contained a proviso that, any disposition of property by will or
partition, taken place prior to 20th December 2004, would not be invalidated by the
present amendment.

Relevant Case Laws and Judgements -

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Yet again in February 2018, in the case of Danamma v Amar, a two-judge bench
headed by Justice A K Sikri sat and gave a decision contrary to that of 2015. It was held
that, as per the 2005 amendment act, a daughter whose father died in 2001 will also
have a share on the father’s property and the daughter will be eligible to be a
coparcener during the partition of the father’s property.
Again, in April that year, another two-judge bench, headed by Justice R K Agrawal,
reiterated the 2015 judgement.
These ambiguities and conflicting views led to a formation of a whole new three-judge
bench, in the case of Vineeta Sharma v Rakesh Sharma and Ors. The present ruling
overrules the judgements from 2015 and April 2018 cases. It was held that “to remove
the discrimination as contained in section 6 of the Hindu Succession Act, 1956 by giving
equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons
have”. Hence, now it is a settled law that, the coparcenary right of a female is created
by birth, and is not dependent on the living status of father on which the amendment
came in effect. A female has same status as of a male on the matter of coparcenary as
soon as she is born.

Conclusion –
‘’The rights of Hindu women in term of holding and disposition of property have changed
over last few decades from a limited ownership right to absolute ownership’’. This
statement is certainly substantiated from the given case laws and elaborated answers.
The importance of the recent judgement is that, it puts an end to all the ambiguities and
uncertainties going on since the 2005 amendment came into force. This verdict puts an
end to all the discrimination against women’s property rights. Hence, it is justified to say
that, from getting limited ownership to having absolute ownership, Indian society has
drastically changed.

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