OPARCENARY RIGHT
OF OMEN
Name:Manjeet Kumar Sahu
B.A LL.B(Hons.)
Section-B
SAP ID:500012141
Reg. No.-R450210069
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COPARCENARY
Coparcenary is a joint Hindu family having a
common ancestor with lineal descendants within four
degrees counting from and inclusive of such
ancestor.
A Coparcenary property is an ancestral or joint
property of the joint Hindu family in which a
coparcenar acquires interest either by his/her birth or
upon the death of the last owner (without an heir).
A Coparcenar's share in the coparcenary property is
variable and is reduced and added by birth and
death in the joint family respectively.
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No female is recognised as a member of the coparcenary
in Mitakshara law.
Since a woman cannot be a coparcener, she is not entitled
to a share in the ancestral property by birth.
The provisions regarding succession in the Hindu Code
Bill, as originally framed by the B.N.Rau Committee and
piloted by Dr.Ambedkar, was for abolishing the Mitakshara
coparcenary with its concept of survivorship and the son's
right by birth in a joint family property and substituting it
with the principle of inheritance by succession.
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SEC.-6 OF HINDU SUCCESSION ACT,1956
When a male Hindu dies after the commencement of this
Act, having at the time of his death an interest in a
Mitakshara coparcenary property, his interest in the
property shall devolve by survivorship upon the surviving
members of the coparcenary and not in accordance with
this Act.
Sec. 8 of Hindu Succession Act,1956
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The retention of the Mitakshara coparcenary
without including females in it meant that females
cannot inherit ancestral property as males do. If a
joint family gets divided, each male coparcener
takes his share and females get nothing. Only when
one of the coparceners dies, a female gets a share
of his share as an heir to the deceased.
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JUDICIAL INTERPRETATIONS
There were conflicting opinions of the various High Courts
on the question of women coparcenary and thus a Karta.
The matter for the first time came up before a full Judge
Bench of the Nagpur High Court in Kesheo v. Jagannath
AIR 1926 Nag. 81, the Court
held the view that mother, though not a coparcener, can
be, in the absence of adult malemembers, Karta of the
joint family, and her actswill be binding on others as that of
a Karta.
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Ratio of the case:that any adult members may be
the manager of the joint family, and in case of need
a step-mother could bind her step-
son,whomas a minor, by alienation of the joint
family property, in whatever character she
purported to act.
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NEW COPARCENARY UNDER STATE
ACTS
The Kerala Joint Family System (Abolition) Act, 1975
The Hindu Succession (Andhra Pradesh Amendment) Act,
1986
The Hindu Succession (Tamil Nadu Amendment)Act, 1989
The Hindu Succession (Maharashtra Amendment)Act,
1994
The Hindu Succession (Karnataka Amendment) Act,
1994
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HINDU SUCCESSION( AMENDMENT ACT),2005
OBJECTS AND REASONS
The retention of the Mitakshara coparcenary property
without including the females in it means that the females
cannot inherit in ancestral property as their male
counterparts do.
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.
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Having regard to the need to render social justice to
women, the States of Andhra Pradesh, Tamil Nadu,
Karnataka and Maharashtra have made necessary
changes in the law giving equal right to daughters in Hindu
Mitakshara coparcenary property."
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RECENT JUDGMENT
In Ganduri Koteshwaramma v. Chakiri Yanadi (2011) 9
SCC 788
Facts of the case:The Appellant(daughter) filed a partition
suit against the respondent (Father) and his brother
claiming that all the parties must have 1/5th equal share in
the property.
Issue Raised: whether the benefits of Hindu Succession
(Amendment) Act, 2005 are available to the appellants.
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The Court appointed the Commissioner for division of
the schedule property.
Enforcement of the Hindu Succession (Amendment)
Act,2005
The Supreme court favoured the Appellant.
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